The Concept of LEED De-certification

Leedv3

LEED Version 3 has some new aspects, and the green building community is trying to understand the ins and outs.  One aspect has been talked about strenuously in the past week, and I thought we should ground ourselves a little bit.  Let’s take a step back and look at Minimum Program Requirements (“MPRs”), the concept of de-certification, or certification revocation, and whether this all means that projects can lose certification if they do not perform as designed.

The 411 on MPRs:

LEED V3, as of today, has seven MPRs.  These are “minimum characteristics that a project must possess in order to be eligible for certification under LEED 2009.”  See LEED 2009 NC Rating System [pdf], pgs. xiv-xv. The MPRs apply only to projects registered under LEED 2009.  Let me say this again: MPRs do not apply to non-LEED 2009 projects!  Thus, in order to be eligible for LEED 2009 certification, a project:

    (1)  Must comply with environmental laws;
    (2)  Must be a complete, permanent building or space;      
    (3)  Must use a reasonable site boundary;
    (4)  Must comply with minimum floor area requirements;
    (5)  Must comply with minimum occupancy rates;
    (6)  Must commit to sharing whole-building energy and water usage data; and
    (7)  Must comply with a minimum building area to site area ratio.

You can find further explanation of MPRs on the USGBC’s website.  There’s also supposed to be a LEED 2009 MPR Supplemental Guidance document published in June 2009, but I can’t find it anywhere.  We’ll keep you posted as to this … In any event, keep in mind that MPRs will evolve over time, so don’t get too attached.

What If You Don’t Comply:

If a LEED 2009 project does not comply or cannot comply with the MPRS, here’s the certification revocation language: “CERTIFICATION MAY BE REVOKED FROM ANY LEED PROJECT UPON GAINING KNOWLEDGE OF NON-COMPLIANCE WITH ANY APPLICABLE MPR.  IF SUCH A CIRCUMSTANCE OCCURS, REGISTRATION AND/OR CERTIFICATION FEES WILL NOT BE REFUNDED.”

The lawyers in the house will note the permissive language “may be revoked.”  I read this to mean that someone has the option to revoke certification.  Who can do this?  Stephen Del Percio mentioned the interesting issue of third-party standing to revoke certification, but I believe the party that issues certification will be the party that has the option to revoke.  That’s just my opinion, though. 

Bottom line, if a project doesn't comply with the MPRs, its certification may be revoked.  If it hasn't obtained certification, it won't be eligible for certification.  

So Why Do We Need MPRs?

There are three main goals with the MPRs.  First, MPRs are designed to give clear guidance to customers.  Second, MPRs help protect the integrity of the LEED program.  And third, MPRs reduce challenges that occur during the LEED certification process.

You can imagine the kinds of situations these MPRs have been designed to prevent.  Chris Cheatham opened a thread on the subject, to which, Michael Kawecki, Axiom Sustainable Consulting, commented: “The MPRs are intended to stop some of the abuse that is going on … You should talk with USGBC and hear some of the projects that have come through – tollbooths, boats, the list goes on.”  I haven’t verified Mr. Kawecki’s remarks with the USGBC, but what he says seems consistent with the espoused goals of the MPRs as set forth in the LEED 2009 NC Rating System documentation.

Energy and Water Data Reporting:

Now here’s where this all gets pretty juicy.  We all know the USGBC is trying to close the performance gap — to get certification to the point where designed performance approaches actual performance and where certification actually means that a building outperforms a non-certified building.  In this regard, on June 25, 2009, the USGBC issued a press release talking about the energy and water data sharing MPR.  In the press release [pdf], Scot Horst, Senior VP of LEED, USGBC, said:

We’re convinced that ongoing monitoring and reporting of data is the single best way to drive higher building performance because it will bring to light external issues such as occupant behavior or unanticipated building usage patterns, all key factors that influence performance.

The press release explains that the “USGBC will be able to use the performance information collected to inform future versions of LEED.”  But the press release doesn’t say that the USGBC or the GBCI, or whomever, will monitor this pipeline of energy and water data to yank points away from projects and then de-certify them.  Maybe they will, but I haven’t seen where that idea comes from.

What about Performance Monitoring?

Lawyer Shari Shapiro discussed the concept of de-certification for the veritable GreenerBuildings.  She questioned, “What happens to a 10-year property tax abatement if the project loses its LEED certification after two years due to failed energy savings?”  Wait, "failed energy savings?" — I guess this may be where the idea is coming from.  The use of the phrase "failed energy savings" while discussing decertification seems to imply that someone will: (1) monitor the data pipeline, (2) discover that the actual performance of a certified building does not meet the design performance of the same, and (3) yank EA/WE points to take certification from the project?

But wasn't this information going to be used to inform future LEED iterations, or to improve the system or help projects?  So I emailed Ashley Katz, Communications Manager for the USGBC, for clarification.  Ms. Katz responded:

USGBC is monitoring the data to inform the future development of the rating system, as well as inform owners on how their building is performing. We’re planning to develop a yearly scorecard that grades each building as a way to inform owners of their performance and where they stand in relation to their predictions and to other buildings out there.  There’s no certification revocation involved based on performance –we’re merely asking projects that can provide data to do so (there are 3 ways that projects can fulfill this specific MPR …). If the project refuses, then we won’t certify them (or take their certification away if necessary).

The concept of a yearly scorecard is interesting — we'll see how this develops.  But, in summary, as a precondition to certification, you must commit to share energy and water data.  That’s it.  You just need to share it, and there are three ways you can comply with this data sharing MPR.  If you can't comply, too bad: Your project cannot be certified.  

This is Good News:

If you're going to share the information, you might as well do it right.  And I believe project teams now have an extra incentive to use smart technology to make data sharing easy.  In doing so, they’ll have access to information to improve the actual performance of a project.  Project teams won’t have to act on the information, but they can if they want to.

Which brings us to the conclusion of one of the longest articles you’ll ever read on this site.  There’s one main point:  with the MPRs and de-certification, there’s a difference between sharing and performing.  LEED V3 projects that don’t share may be de-certified.  LEED V3 projects that don’t actually perform as designed still maintain certification.  And this is why we haven’t heard the last of the so called performance gap with certified buildings.


  • Anonymous

    Preston, you nailed it. De-certification for failure to report energy data is only the first step.

    Your being sucked into the green building legal vortex. You better be careful, it’s tough to escape. :)

    • http://www.jetsongreen.com Preston

      Chris, I should add, I’ve been in the green building legal vortex since 2006. I just don’t blog about it and wouldn’t construe this as legal or advice or otherwise.

      As I follow the growing number of green building voices, I believe a lot of the same is being rehashed and the legal analysis needs to get deeper. But you and Stephen seem to be on the right track with the kind of rich analysis these topics deserve.

      • Anonymous

        @Preston – I should have said, “the green building legal blog vortex.”

        You are right that a lot of the same is being rehashed and I think you will see a lot more of that over the next year. Part of it is a lot of attorneys trying to jump into this field; the other issue is that there really isn’t much going on in this field right now. We are more issue spotting for the future than anything else.

  • http://www.sincerelysustainable.com theauthor

    Hopefully this will finally give some real teeth to LEED and some badly needed credibility to the USGBC.

  • http://mportlandhomes.com/ M Realty

    Brilliant. De-certification would make sure that there was no green washing going on where people like to make a building seem green when it is not. Having minimum requirements makes sure that people stick to the standard and that the desired effects are actually achieved.

    -Tyler

  • Anonymous

    Preston,
    Great job summarizing what can be a very confusing topic. It is truly a great thing to see people other than attorneys analyzing risks and the potential issues that could arise in future lawsuits.
    Chris,
    It is very tough to escape! I have Preston to thank for putting me in contact with you and starting my immersion into this area of law.

    • http://www.jetsongreen.com Preston

      Rich, the author of this article is a practicing attorney, but this isn’t a legal blog.

  • Anonymous

    Tyler,
    I think that the minimal requirements while a step in the right direction are a long shot from solving the problem of poorly performing buildings. It is my hunch that buildings are not performing poorly due to their actual design or construction which the MPRs are aimed at addressing but rather due to how they are being used by their occupants. Until green leases become the norm and until owners not only sell their buildings as green but properly educate the end users in their operation we will continue to see poorly performing buildings. Hopefully the requirement to share energy usage will illuminate the need to educate the occupants and correct practices leading to poor performance.

  • Anonymous

    Great topic!

    IMHO De-certification and revocation are MUSTS if we want this whole concept of green and sustainable building to succeed.

    Greenwashing poses THE greatest risk to the movement as a whole. Design and performance are all we have. If we aren’t willing to enforce those things, this will fail miserably.

  • http://www.greenrealestatelaw.com/ Stephen Del Percio

    What’s most interesting to me, Preston, is that the sharing requirement must carry forward- i.e., if the building or leased premises change hands, the new owner or tenant must also commit to sharing data. This presents some interesting- though certainly not insurmountable- challenges for attorneys, both in terms of educating clients but also incorporating language that satisfies the MPR into pertinent documents.

    As far as standing goes, I agree that the language of the MPR is clear: decertification will remain in USGBC/GBCI’s discretion. The question that I raised at GRELJ which, I think, requires a bit more analysis is what- if anything- USGBC/GBCI must do upon receiving information from a third party that a project has failed to satisfy a particular MPR.

    • http://www.jetsongreen.com Preston

      Right on, I agree. What do they do when they get the information and how do they make sure they’re not acting arbitrarily or discriminating or whatever. I believe the Supplemental Guidance to the MPRs will explain this, although I haven’t been able to find a copy. We’ll see …

      • Anonymous

        @Preston – supplemental guidance hasn’t been issued yet. It is coming out soon.

        • http://www.jetsongreen.com Preston

          Chris, I realize that, but a note somewhere from the USGBC said the guidance was published in June 2009. See above article.

  • http://twitter.com/MCE68 Michael English

    I am a huge fan of decertifying a building when appropriate. On multiple occasions, my company is called in after the fact to “fix” a building that has already been LEED certified. The owners of these buildings are trying to do their part by investing in green. The sad part is that some of these buildings don’t function due to poor design, coordination, construction and/or commissioning. I’m all for doing whatever it takes to uphold the value of these certifications and make certain that they reflect true building performance. This is crucial to maintaining integrity within our industry.

  • http://www.everblueenergy.com/leed-certification.html Ms. LEED Certification

    Wow, I really enjoyed this article. I hadn’t even considered de-certification. You make very good points, and thank you for explaining just who would be in the position to revoke a building’s certification. It all makes sense. After going through the LEED certification process, a building should operate by LEED standards. I believe certification should be revoked if a building does not comply with those standards…that would be rather misleading to say the building was operating by LEED standards if it wasn’t! Thanks for the information!!

  • Anonymous

    I am curious as to where the green community has talked about “One Aspect…. strenuously in the past week.” I like to think I keep well informed in this arena and follow a number of blogs – but I haven’t seen anything on this as of yet. (BTW have people been noticing the much closer scrutiny GBCI is giving LEED projects compared to the USGBC review process? Not sure if they understand construction, maybe just auditing)

    I certainly have seen design problems, but those projects with high energy performance goals also have a higher risk of systems and concepts not working as expected. At that point fixes are necessary, and the industry doesn’t have a good way to deal with the risk/reward (and fix) process.

    Our A/E firm has been collecting energy data on projects that we were involved in over the last decade but so far have found this to be hard work. Bad information, inconsistent units, hard to work with utilities. Getting all this data in one place in a common format will be nice for our internal QC process and will improve the breed.

    • http://www.jetsongreen.com Preston

      Just off the top of my head, I know this topic hit ENR, Greener Buildings, and pretty much every green building law blog on earth. There are more …

      • Anonymous

        Ahh .. the green building LAW blogs – no wonder I missed it. I suppose we will soon see something from our insurance carrier soon in regards to the liability issues of potential decertification.

  • http://www.iesve.com/ Suzanne

    It’s amazing how LEED has changed over the years. It hadn’t even crossed my mind that they would consider decertification when I read about the new performance monitoring requirement on all projects. I did have several other thoughts on the matter which I posted here: http://blog.iesve.com/index.php/2009/07/06/no-longer-resting-on-leed-laurels-companies-must-submit-updates/

    Great to read about this topic from a new and fresh angle. I imagine the legal side of things will be coming up more often with LEED as it becomes more mainstream.

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