I have long been bothered by the fact that legislative bodies have been broadly requiring that buildings be certified by nongovernmental private organizations such as the USGBC and its LEED green building rating systems (also included on the list is the GBI’s Green Globes rating system). Even more troubling to me is that the building industry, by and large, has tacitly accepted this without much concern or objection. Sure, there have been a few individuals that have raised issues about problems with these green building rating systems beginning, perhaps, with the paper by Auden Schendler and Randy Udall “LEED is Broken … Let’s Fix It” and peaking with Henry Gifford’s white hot lawsuit against the USGBC and LEED for false advertising and deceptive trade practices, but nothing has come from the industry as a whole.

Green building legislation is being adopted rapidly across the United States. A 2009 American Institute of Architects study found that 138 of 661 US cities with a population of 50,000 or more had established green building programs. The study defines a “green building program” as a law or regulation that mandates or incentivizes construction of green buildings within a community. Professional organizations like the American Institute of Architects, Design Build Institute of America and the Associated General Contractors of America have fully embraced LEED and have produced documents and training materials to help industry professionals successfully implement the LEED program (LEED being by far the most cited) partly in response to this green building legislation.

Questioning the Wisdom of Green Building Legislation

In a recent Architecture Boston article titled “The Shadow Government: With little public oversight, the organization that invented the LEED system is remaking an industry,” author Michael Liu raises several concerns about the fact that LEED has been adopted as a requirement or a programmatic goal by a number of governmental agencies. One of his main concerns is, unlike the federal government’s adoption and use of standards by organizations such as ASTM, ANSI, NFPA and UL, “...the difference between these institutions and the USGBC is that while government regulators rely on the standards, regulations and research such organizations produce, the USGBC has become, in effect, a regulator itself.” Liu concludes, “… although the USGBC’s LEED system has done more to bring the cause of sustainability into the public consciousness than any other, perhaps the time has come to revisit that assumption in the case of a private regulatory body that is not answerable to governmental authority.”

Attorney Stephen Del Percio, Green Real Estate Law Journal blogger, further explains “the difference is that those other standards are just that-standards. They’ve been accredited by ANSI or ISO or UL. There’s a mechanism in place within the state or local legislation to address any compliance disputes. There’s a body of law that addresses non-delegation in that context. Rating systems where a designation is conferred by a third party is a separate scenario.” He wrote that Liu’s argument is “… not necessarily a novel one, [but] it is significant that a major architectural publication has openly asked the question.” Del Percio sums up his blog post on the subject with the observation, “shining a spotlight on these issues as green building regulatory activity continues is critical, particularly as construction starts increase in an improving real estate climate.”

Green Building Legislation: Unconstitutional?

Hofstra University J.D. candidate Frank David Ditta makes the case (in meticulous detail) that green building legislation is unconstitutional. In his Law Review article “Leading the Way in Unconstitutional Delegations of Legislative Power: Statutory Incorporation of the LEED Rating System,” Ditta points out “… the fervor surrounding the green building movement has left many of the usual safeguards of democratic accountability behind, resulting in an unconstitutional delegation of legislative power to the USGBC through the incorporation of the LEED rating system in law.”

He goes on to explain that the U.S. Supreme Court and the supreme courts of several states have reaffirmed the premise that legislatures are limited in their ability to delegate the authority to make law and that industry groups cannot be given this authority simply because they are familiar with their enterprises. Such a delegation of legislative power, he explains, is “unknown to our law” and “utterly inconsistent with the constitutional prerogatives and duties of Congress” and by extension state legislatures.

Ditta provides several examples of states and cities that he said have unconstitutionally delegated lawmaking authority to the USGBC and says “codification of LEED standards into law at any level of government is an unconstitutional delegation of power to a nongovernmental organization-the USGBC-over which the government and public at large can exercise no direct control.” In a concluding statement, he insists “… government cannot dictate that the green building standards imposed on our building industry originate in a closed-off and interest-based nonprofit that has been unconstitutionally delegated authority to determine, on a nationwide scale, green building policy.”

What's a Designer/Owner Contractor to do?

To owners, architects, and contractors that are legislatively and contractually obligated to deliver a green building meeting green legislation requirements, constitutionality matters very little. Owners, architects and contractors have been struggling with these requirements and specifically with the question of how to succinctly establish new sustainable design duties and responsibilities among the parties. The American Institute of Architects has sent out a rescue boat in its recently released Document D503-Guide for Sustainable Projects, which is much welcomed and long overdue. Freely downloadable, AIA Document D503 provides background information about sustainable design and construction practices and model language that can be incorporated into the AIA family of documents including A201 General Conditions of the Contract for Construction as well as Owner/Architect and Owner/Contractor agreements.

For the owner, D503 provides suggested language in establishing a minimum level of performance required by the architect in designing the building to meet established sustainable design goals. This may include a requirement that the architect perform certification services such as registering the project for certification, collecting sustainable building data and transmitting this data to the certification authority. A sustainability plan is defined and can be required to be developed by the architect in helping to outline steps in achieving owner-identified sustainable measures. The document also established minimum duties and responsibilities of the contractor including confirmation that substitution requests will identify any potential impact such requests may have on the project’s ability to meet its stated Sustainable Measures. Model language is also included requiring the contractor to prepare and complete documentation for certification as required in the contract documents.

For the architect, D503 provides model language that certification is dependent on factors beyond the architect’s control such as owner’s use and operation of the project; the work provided by the contractor or the work or services provided by the owner’s other contractors or consultants; or interpretation of credit requirements by (certifying authority). The document also defines architect services exceeding the limits of basic sustainable design services and a mechanism to be compensated for them.

For the contractor, D503 provides model language that establishes that sustainable objective achievement (certification) shall not be a condition precedent to issuance of a Certificate of Substantial Completion.

Conclusion

Federal, state and city governments have been enacting legislation mandating that buildings be green with a sense of urgency so great that reason and common sense have been kicked to the curb. Unwittingly, perhaps, government has enacted this legislation unconstitutionally, delegating legislative authority to third party organizations such as the USGBC. Instead of complaining or even questioning the wisdom of this legislation, the building and construction industry has more or less gone along with it and in most cases has enthusiastically supported it. If challenged in court and found to be unconstitutional, as Ditta presents in his Law Review article, will it be the end of green building legislation delegating authority to organizations like the USGBC? Will the legislation simply be modified to adopt green building standards such as ASHRAE’s Standard 189.1 or will governments simply fold the new IGCC requirements into building codes? Time will tell.