August 16, 2013

Although so-called “green building” is the latest trend in the construction industry, it can be hard to define what makes a project “green.” The United States Green Building Council — a nonprofit organization comprised of owners, developers, facility managers, design professionals, general contractors, subcontractors, suppliers and government agencies — tasked itself with identifying green building practices. The result was the Leadership in Energy and Environmental Design Green Building Rating System.™

LEED is the emerging short-hand for what makes a project green, environmentally friendly, and/or energy efficient. LEED is actually a series of checklists targeted at specialized projects. As of this writing, the USGBC has developed the following:

• LEED for New Construction and Major Renovations (NC)
• LEED for Existing Buildings: Operations & Maintenance (EB)
• LEED for Commercial Interiors (CI)
• LEED for Core & Shell (CS)
• LEED for Schools
• LEED for Retail
• LEED for Healthcare
• LEED for Homes
• LEED for Neighborhood Development

Projects accumulate points by meeting criteria and based on those points are designated LEED certified (the baseline), LEED Silver, LEED Gold or LEED Platinum.

Familiarity with the LEED certification system is essential for government (federal and state) contractors and certainly is recommended for contractors in the private sector. Many public entities now require that theirpublic projects meet LEED certification standards and offer incentives to private LEED projects. First and foremost, various arms of the federal government are requiring LEED certification for their projects. The General Services Administration requires that all building projects meet the LEED certified level and target the LEED Silver level. The GSA strongly encourages but does not require projects to apply for certification, however.  Likewise, the U.S. Navy requires “all applicable projects” to meet the requirements for LEED certification but does not require submission to the USGBC for actual certification. On the contrary, the U.S. Environmental Protection Agency requires all new facility construction and acquisition projects 20,000 square feet or larger not just meet but actually achieve LEED Gold certification. Likewise, the U.S. Department of Agriculture requires all new or major renovation construction of covered facilities to achieve LEED Silver certification.

Local and state governments also are implementing LEED requirements for public projects and incentives for private projects. The City of Gainesville, Florida, requires government buildings be LEED certified and offers fasttrack, reduced cost building permits for private contractors who use LEED. Likewise, Arlington County, VA, offers expedited permitting and allows higher densities to LEED Silver projects. Other governments offer tax incentives on LEED projects, e.g., in Chatham County, Georgia, commercial buildings achieving LEED Gold certification benefit from full property state and county tax abatement for the first five years, which tapers off by 20 percent each year until the tenth year. In Cincinnati, Ohio, the tax breaks vary by level of LEED certification achieved.

Although the public sector led the way with LEED projects, at this point green construction has gone mainstream. Examples of LEED registered (i.e. ongoing) and completed certified projects are everywhere; just in Atlanta, for example, they include:

• LEED for Core and Shell:
• 171 17th Street (Silver)
• 2555 Cumberland Parkway
• 1180 Peachtree (Gold)
• 4004 Summit
• Phipps Plaza Tower
• LEED for Commercial Interiors
• DPR Construction, Inc.
• Herman Miller Atlanta National Design Center (Gold)
• Perkins+Will, 1375 Peachtree St
• Skanska Office at Ivan Allen Plaza
• LEED for Existing Buildings:
• One Atlanta Plaza
• Sam Nunn Atlanta Federal Center
• Southern Dairies Building C
• LEED for New Construction:
• ASHRAE Headquarters
• Ben Massell Dental Clinic, Jewish Family & Career Services
• Management Building at Technology Square, Georgia Institute of Technology (Silver)
• Edgewood Offices, The Epstein Group, Inc.  (Platinum)
• Villages at Carver Family YMCA

Signs on construction fences indicate that many more projects seeking LEED certification are underway.

Practical Considerations
The earlier in the planning phase that the owner decides to seek LEED certification, the lower the costs of construction. As a rule, design costs for LEED projects exceed design costs for non-LEED projects. Arguably, however, the increased emphasis on front-end design reduces construction costs by reducing the number of change orders required. If an owner wants or requires LEED certification, the project participants need to understand the LEED process when estimating, bidding and working the job. LEED touches every decision from site selection, selection of materials, handling of construction waste, storm water, MEP design, to finishes.

When an owner decides to obtain LEED certification, the first step is designating a LEED accredited professional to oversee and shepherd the process. Often the LEED AP is a member of the design team, though it could be a construction manager or contractor, on a design-build project for example. No matter who is serving as the LEED AP, for a LEED project to be cost effective, all project participants — not just the designers — need to understand the requirements for LEED certification from the beginning.  Contractors may be surprised that they are already acting in ways that would earn points for LEED Certification.

Projects accumulate points in six core areas:

• For sustainable sites, e.g. by conforming to the NPDES permit requirements, which is already required;
• For water efficiency, e.g. by capturing rainwater, using native landscaping and using innovative water efficient fixtures;
• For energy and atmosphere, e.g. by conforming with ASHRAE 90.1, reducing energy demand, using HVAC and fire suppression systems without HCFCs or Halons, and using on-site renewable energy (e.g. photo-voltaics) or other green energy;
• For materials and resources, e.g. by storing and collecting recyclables, reusing shell and nonshell components in renovations; diverting construction waste from the landfill; using recycled or rapidly renewable materials; and using local or regional materials;
• For pollutants and indoor environmental air quality, e.g.  by choosing low or no emitting materials adhesives, sealants, paints, carpets and composite wood products; flushing or filtering out any pollutants; and conforming with ASHRAE 55; and
• For innovation and the design process.

The LEED AP must submit documentation to support every point the project is claiming, so all project participants involved with a particular point must document it. See www.usgbc.org or www.buildinggreen.com for more information.

Legal Issues Raised by LEED
No cases have tested the nature or extent of liability related to LEED certification yet. Potential questions that will eventually arise if they have not already include: Who warrants the content of materials for LEED certification purposes? Does LEED certification operate as an affirmative defense to building defect claims after construction? Is the HVAC subcontractor liable for moisture issues related to LEED mandated systems? Who bears the risk of the project not meeting the criteria for a given level of certification? Is it enough that the project meet the LEED criteria or that it actually be certified by the USGBC? Who has the authority to decide whether a project meets the LEED requirements if not the USGBC? Who bears the risk of a project not meeting the level of certification required by the owner? What is the remedy?

These questions remain unanswered because there have not yet been any reported legal cases involving LEED or other green construction standards. However, as with all projects, the participants should read the project documents carefully to evaluate their risks and responsibilities. Pay close attention to any mention of LEED and make sure to know what your responsibilities will be with regard to the LEED certification process. Until the law develops the best strategy is to document, document, document.

Helen Pope
404/582-8044
[email protected]
Member of the State Bar of Georgia