In this second post about LEED, we briefly review the achievement categories for construction projects. Then we take a look at LEED appeals and challenging whether credits within the categories were fulfilled.
As discussed in the post #1, LEED is a rating system for sustainable and efficient building, which achievement level—denoted by platinum, gold, silver, and certified—may be a requirement in the project specifications or a condition for funding. The level is determined by points (up to 110 are available) earned in several categories. The categories are often interrelated. For example, the location selected can affect energy options including harnessing renewable power. The universal categories (there are also regional categories) and brief examples of strategies for generating points follow:
- energy/atmosphere – (33 points) - incorporate natural air sources through appropriate venting or harness wind energy, use solar energy and sunlight for some or all building power sources, insulate walls and the roof to conserve energy, give due consideration of size demands of the use and build appropriately, select high-performance appliances, lighting, and HVAC, design appropriately sized HVAC loops for heating and cooling;
- materials/resources – (13 points) - reuse building materials, rely on efficient framing spacing to use less material, use local materials to reduce travel emissions, use renewable, recycled, long-lasting, prefabricated materials, adopt streamlined recycling and waste programs;
- innovation – (6 points) – credit is given for a cutting edge methodology even if it exceeds or does not fit into a specific category.
LEED certification process begins when a project team registers its application online. (For guidelines on the entire application process, see the LEED Certification Guide). The team provides all necessary information about the project and documentation to establish the various credits. The U.S. Green Building Council’s Green Building Certification Institute (“GBCI”) reviews the application, allows for supplemental clarifications during the “Preliminary Review,” and then provides a “Final Review” that states whether and to what level the project will receive LEED certification.
On the flipside of the project team’s appeals and interpretations is the “Certification Challenge.” This policy is intended to ferret out “incidents of intentional or inadvertent misrepresentation which result in the inappropriate award of LEED certification.” See the LEED Certification Guide. Essentially it is an audit process that may initiated by the GBCI president for “any reason or no reason at all” within 18 months of LEED certification. The GBCI may also proceed with a Certification Challenge if a third party with “specific personal knowledge” comes forward with a complaint. In either case, there is an investigation by GBCI and an opportunity for the project team to be heard. Upon an adverse determination, the project team may appeal to the GBCI Board of Directors. In the event of an adverse decision before that board, the decision is final, and the LEED certification may be revoked.
Final Post: We will examine considerations in construction contracting in this green-building era aimed at avoiding disputes on a sustainable project. For example, the AIA has adopted its own guide and contract language. See AIA D503.
The author, Katharine Kohm, is a committee member for The Dispute Resolver. Katharine practices construction law and commercial litigation in Rhode Island and Massachusetts. She is an associate at Pierce Atwood, LLP in Providence, Rhode Island. She may be contacted at 401-490-3407 or kkohm@PierceAtwood.com.