5 Ways Your LEED Project Can Be Challenged, Cancelled, or *GASP* Revoked!

Though it hasn't received a tremendous amount of attention*, part of the LEED v3 updates included various paths by which LEED project registrations can be cancelled and people can challenge existing LEED certifications and possibly have those projects' LEED status revoked!

If you haven't browsed it yet, I would highly recommend flipping through the GBCI LEED Policy Manual, which lays out the basic regulations surrounding these and other issues that you should know about before starting a LEED project. The following headings are largely copies of the chapters in the policy manual (pgs 12-17), but I've shortened the text to show only the critical requirements in each category

1. Your Project Wasn't Submitted Before the Rating System Sunset Date

With the start of LEED v3 the GBCI instituted a 'registration cancellation policy' that sets a few deadlines that you have to meet or else the GBCI is authorized to void your registration. The "'Sunset Date' refers to the date occurring six (6) years after the close of registration for a rating system version." e.g. Registration for LEED-NC v2.2 closed on June 26, 2009**, meaning that at least a design certification review for a LEED-NC v2.2 project must be submitted by June 26, 2015 or the GBCI can decline to review the project. If you submit a design review before the sunset date you have up to 1 additional year from the date of the design submission to submit the construction review.

I don't really have a problem with this requirement, as the GBCI can't be expected to staff reviewers with knowledge in every version of the rating system since the beginning of the LEED over 10 years ago. 6 years should be ample time even for the longest project schedules (though possibly not LEED for Neighborhood Development). It also appears as though this requirement applies retroactively, as the USGBC closed reviews of LEED-NC v2.0 projects on December 31, 2009. To date, the USGBC has offered free 'upgrades' to new systems as their launched, though there's no guarantee this will happen in the future.

Simply Terrible...

Let's a take a moment to admit that some cancellations are for the best

2. Your Project Has Been Inactive on LEED Online for Too Long

"GBCI reserves the right to cancel any project that, as determined solely by GBCI, remains inactive for a period of four (4) years or more." The note goes on to say no refunds will be provided. I'm not wild about this requirement, as I can't figure the purpose. I suppose it's to prevent crafty LEED administrators from purchasing a bunch of registrations well in advance of actually starting projects so that they may lock in the typically less restrictive requirements of earlier systems. Just because the GBCI can revoke a registration in this manner doesn't mean they will, and I would assume some sort of warning would be announced to the project administrator prior to shutting it down. I still don't like it though, because it seems necessary given the sunset date requirements.

3. You Waited Too Long to Submit After Project Completion

The new rules also state that an NC, CS, or CI project has no more than two years after the "Project Completion Date" to submit for review. I'm also a little unclear about the purpose of this requirement. In every project I've worked on the owner provides plenty of incentive to get the certification finished, and I don't know why the GBCI cares either way how timely the submittal is tied to the completion date. Again it seems like the sunset dates should be the only really necessary restriction.

4. Someone Challenged Your Certification Rating (and They Were Right)

While the registration cancellation policies discussed above are pretty straightforward, the Certification Challenge Policy is an interesting can of worms in that anyone can initiate regardless of their involvement in the project. These challenges occur after a project has completed the certification, and can result in anything from a loss of one or more points to a complete revocation of the certification altogether. It's not just credits that are potentially considered, but also compliance with the Minimum Program Requirements.

A formal investigation can be launched by the GBCI itself without third party complaints or by anyone in the general public, though they cannot do so anonymously... From the policy manual:

Persons desiring to make a complaint may submit a written statement identifying the persons alleged to be involved and the facts concerning the alleged conduct in detail, and, to the extent available, the statement shall be accompanied by any available documentation. The statement shall identify others who may have knowledge of the facts and circumstances concerning the allegation. The person making the complaint shall identify him/herself by name, address, and telephone number.

Once a complaint has been filed, no one less than the GBCI President him/herself reviews the complaint (with the help of their legal counsel, of course), and can either dismiss the complaint immediately if deemed frivolous or initiate an investigation that can potentially include further documentation from the project manager or owner or even include site visits. Should the GBCI determine there was indeed some form of false representation or inaccuracy in the original submittal, there's a whole load of notifications, appeals and such that I'm not going to cover here. I'll assume that should this ever happen to you you're likely to take the time to read the policy manual yourself!

To my knowledge there has been only one certification challenge to date. It was against the LEED Gold certified Northland Pines High School in Wisconsin... The GBCI has at this point denied the challenge and elected to maintain the certification, but a new post today from the Green Building Law Update shows that the five challengers haven't given up... Interestingly, all of those involved in the challenge (an architect, a developer, a contractor, a chiropractor, and a 'local businessman and community leader) served on the building committee for the project. They recently released all of their challenge documentation and a statement about their dissatisfaction with the denial of the challenge. I'm not going into it here, but it gets pretty interesting when you consider their claim that "[The GBCI] based [the denial of the challenge] on reports from two more consulting engineers who said that the building did not meet the prerequisites but concluded that “pretty close” is close enough." I expect that we'll hear far more on this in the near future.

5. You Forgot To Recertify Your LEED-EB Project

LEED for Existing Buildings projects must recertify the project every five years to maintain their certification. It is the only rating system that requires re-certification at this time and this is nothing new... it's always been this way.

*It hasn't been discussed much except by Chris Cheatham, founder of Green Building Law Update, who can't seem to shut up about it lately... Seriously though his coverage of the LEED Certification Challenge policy is a highly recommended read, especially as the ongoing drama surrounding the Northland Pines project develops. The Green Real Estate Law Journal also has some coverage but without as much commentary.

**EDIT 07.12.10 - Thanks to alert reader Mara Baum for pointing out that I had the wrong date for the close of registration for LEED-NCv2.2. I had originally listed April 27, 2009, the day LEEDv3 registrations went live. The date LEED-NCv2.2 registrations closed, however, was June 26, 2009, and that is the day the sunset clock started to tick...

8 comments:

Chris Cheatham said...

This is a great review of the grounds for revoking LEED certification. And thanks for plugging my blog. Much to your chagrin, I am not going to shut up about the LEED Challenge Policy for some time. :)

Do you think the Policy Manual is significant enough that it should be included with the LEED manuals?

earthapril said...

I think the Policy Manual should definitely be included in the LEED Reference Guides. This is information that is extraordinarily relevant. Currently you cannot download a PDF of this either. You have to simply browse it on the GBCI website. So, I'm all for a print/collated version!

Great post!

joelmckellar said...

I would agree... it should be combined.

April... good news! As of April 2009 the GBCI policy manual is available as a pdf. The links in the post take you to it or you can follow this link here to access it as well.

Tuckamore Design said...

Thanks for the info, Joel. I thought I was on top of all things LEED (ha!), but found out about the Challenge Policy just last week....I must have slept through that LEED 2009 presentation last year.... I have to now explain this to a client tomorrow and I'm going to read this and Chris' posts very carefully. Thank you both for writing about it.

Mara said...

I would argue that the six year sunset date will impact plenty of projects, especially those with one of the following conditions:

-Phased construction of existing building renovations in order to maintain building occupancy (e.g. renovate one floor at a time)
-Healthcare projects, due to long agency review periods (especially California) and time required for medical planning efforts
-Projects entering design in the late 2000's but had a delayed construction start due to the economic downturn & financing challenges.

elizabeth said...

Hey Someone, Please help! I worked for a couple of years on a project that was to be LEED Silver-equivalent. We kept detailed records and used the LEED ref. guide for NC, V 2.2. We have spreadsheets and even templates of a sort. The gov. decided just before commencement of the job not to pay for 3rd party cert., but the GC was held to our "LEED-Lite" specs. and kept good records. We are near sub. completion and they are having second thoughts about registering for certification. Is it too late to register????

Joel McKellar said...

Elizabeth,

It is too late to register for LEED-NCv2.2, but you could potentially register for v3. Much of the documentation will still apply, but some things (most notably energy models) will have to be updated.

Best of luck,

Joel

Lauren said...

Hey,

Where did you get the information about the sunset rule from? We are trying to figure out the specifics at my office but we seem to be getting conflicting answers from GBCI. One person told us that only the design submission had to be completed by the sunset date and that the construction submission can be done any time after (no mention of it being within a year). Another response we got was that the project had to submit for final certification by the sunset date. The LEED-NC v2.1 statement on GBCI's website says something similar to this about having to be certified by the date.

Sorry if this is confusing - thanks for your help!