July 14, 2009
Because LEED certification has become increasingly mandatory in locations across the United States, an understanding of the new LEED 2009 (a.k.a. LEED v3) system promulgated by the United States Green Building Council (USGBC) is crucial. As of June 27, 2009, all construction projects seeking LEED certification must proceed under the new LEED 2009 system. While the new system is substantially similar to the previous LEED system, there are several notable improvements and differences that must be understood to assure compliance with the new system and achievement of the desired level of certification.
In recent years, the green construction and green real estate development movement in the United States has transformed from a small group of developers and contractors appealing to idealistic consumers concerned with saving the environment, into a pervasive national movement that yields very real and tangible economic benefits to real estate developers, owners, contractors, and related entities. The most recognizable benchmark of a building's green credentials is the Leadership in Energy and Environmental Design (LEED) certification, created in 2000 by the USGBC. LEED certification has become so pervasive that it is now mandated by numerous U.S. localities for all new building projects. Additionally, the LEED certification process has recently been revamped, and an understanding of how these changes affect a building's ability to become LEED certified is critical.
LEED Certification Increasingly Mandatory
Green building, and specifically the attainment of LEED certification, has for some time been considered a lofty goal for developers and retailers seeking to improve their image, better the environment, or capitalize on lower energy and operating costs. But these goals have increasingly been transformed into mandates, as local governments are beginning to add green standards into the codes and ordinances that govern development, and as the federal government is considering a national energy efficiency building code as contained in the climate change bill recently passed by the U.S. House of Representatives.
While different areas of the United States are adding green standards to their local codes at varying speeds, the trend is evident across the country, as those municipalities without green standards are beginning to imitate those with such standards. In a recent survey of U.S. cities, four out of five municipalities cited sustainability as among their top five priorities. Washington D.C. and Boston codes both require that all new private developments larger than 50,000 square feet meet at least the lowest LEED standard. A recently enacted San Francisco ordinance applies green building standards to new commercial structures over 5,000 square feet.
Even in areas where LEED certification or some other green standard is not mandatory, developers and retailers are aspiring to meet such standards in order to stay ahead of the curve. These companies understand that while green standards may not yet be mandated in their location, they will be soon. Moreover, because LEED certification involves complex and detailed certification requirements, these companies are attempting to understand the process now.
It is important to emphasize that the impending mandates are not the only factors motivating developers and retailers to attain green standards such as LEED certification. As the head of one architecture firm recently noted, "If I can get a building to market faster, operate it cheaper and use the waste stream as a source of income, for instance, why wouldn't I?"
Major Changes to LEED Certification Process
As of June 27, 2009, LEED 2009 refines the scoring system governing certification and makes the certification process easier and more straight-forward. LEED 2009 retains the same four certification levels as the previous version (Certified, Silver, Gold, Platinum), but adjusts the scoring criteria for each level to a new 100 point scale (110 points with available bonus points) and changes the weight given to each credit. One notable change under LEED 2009 is the availability of up to four "Regional Priority" bonus points for certain credits deemed to be of particular interest to a given geographic region.
For the first time under LEED 2009, the credit categories, the total points available, and the points required for each level of certification are the same regardless of the type of building seeking certification (e.g. New Construction; Existing Buildings; Commercial Interiors; Core and Shell; Schools; and Homes). LEED 2009 also changes the allocation of points available from each of the various credits, giving more weight to those credits deemed to be of greater value, such as those addressing increased energy efficiency, renewable energy, access to public transportation and water conservation.
One of the largest sources of certification points--under both the old and new LEED systems--is the forecasted reduction in energy and water consumption below government-mandated levels. A criticism of the old LEED system was that once a building received LEED certification, it was not required to report actual energy or water usage or actually meet the forecasted consumption levels in order to maintain its certification. LEED 2009 addresses the first of these criticisms, but it does not address the second.
One of the major changes under LEED 2009 is a new requirement that all projects seeking LEED certification "must commit to sharing with the USGBC and/or GBCI all available whole-project energy and water usage data for a period of at least five years" before it will be considered for LEED certification. This new reporting requirement will give the USGBC needed real-world data as it continues to hone the LEED certification process in the future. Under LEED 2009, LEED-certified buildings are still not required to actually meet their forecasts for reduced energy and water consumption in order to maintain their certification, thus failing to address a criticism of the LEED certification process. Achieving certification of a building project under LEED 2009 remains an imperfect science, but the process is notably improved over that required by previous versions of LEED.
Baker Donelson has offices in Alabama, Georgia, Louisiana, Mississippi, Tennessee and Washington, D.C. The Firm is a member of the U.S. Green Building Council and has formed a green building initiative from members of the Real Estate, Construction and Government Regulatory Actions practice groups. Three of our attorneys--Kevin Garrison, Stephen Pudner, and Trevor Jones—have earned LEED A.P. accreditation, which uniquely qualifies them to advise clients in industries related to construction and commercial real estate development and leasing, including builders, suppliers, developers, retail industries, and engineers and architects, as to the LEED certification process and requirements. If you have any questions about LEED certification, please contact Kevin at [email protected], Stephen at [email protected], or Trevor at [email protected].