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LEED Certification: A Q&A

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David Scott, a partner at Luper Neidenthal & Logan in Columbus, Ohio, and a LEED Accredited Professional, provides a refresher on issues surrounding the Leadership in Energy and Environmental Design (LEED) Green Building Rating System. Scott, who penned the Meritas Green Guide for Lawyers, writes on related issues at the Ohio Green Building Law blog.

What is LEED certification, and what businesses should be interested in it?

LEED is a building certification process that was developed by the U.S. Green Building Council (USGBC) beginning in the mid-1990s. There are lots of different types of LEED certification, and the certification was recently modified. For example, there's LEED for new buildings, for existing buildings, for schools, residential. There's LEED for neighborhoods: clusters of buildings can bee LEED-certified. One particular business probably won't be more interested in LEED than another--LEED could be relevant to anybody who lives in or works in a building.

A building needs to acquire a certain number of points to become LEED-certified, and the number of points determines your level of certification. LEED-certified is the very basic level, then there's, silver, gold and platinum. You get points by doing things the USGBC determined warrant points.

Why pursue LEED certification?

The two biggest advantages of having a LEED building are, first, simple health and welfare. A number of studies have shown that people who work or live in LEED buildings are actually healthier--it's about the occupants.

You get points for things like daylighting--folks in hospitals with more daylight tend to get healthier quicker. In the health care arena, it can be a massive cost savings if you have LEED building versus a non-LEED building, or even a building that incorporates some of those principles that can lead to LEED points.

Same with the internal environmental quality--if you have carpet or paint that doesn't emit volatile organic compounds (VOCs), you get a point. An internal environment with fewer chemicals is generally a healthier environment.

Some studies have shown that people in LEED buildings are more productive than people who work in buildings that don't have some of those features.

The second benefit is the energy usage: About 75% of all LEED-certified buildings consume less energy than a traditional bulding. When the LEED system was overhauled last year, it was changed to push the energy efficiency aspect even more. The new LEED-certified buildings are expected to perform better with respect to energy usage. But even so, the energy usage generally is going to be lower in a LEED building.

There are several ways LEED contributes to energy efficiency. It costs less to heat/cool a LEED building because of way they're designed. A LEED building has higher-efficiency HVAC systems. And there are other things, which can be as simple as how a building is oriented: When you angle a building a certain way the angles of sun can either provide too much or not enough heat. You may want heat, or you may want sides to be cooler. There's also prevailing wind direction. So things as simple and fundamental as the place where a building is built and the orientation of the building are considered for LEED certification as well.

What was behind the April 2009 update to LEED--the so-called launch of "LEED v3"?

The USGBC commissioned a study that concluded there about 25% of LEED buildings used as much or more than a traditional bulding. That was deemed to be a bit of a problem--on the one hand, 75 percent of LEED buildings do better, but a full quarter of LEED buildings perform, at least energywise, the same. The USGBC realized through that study that a few different things were happening. First, there was no requirement for ongoing commissioning assistance--your HVAC system may be great when you first install it, but without proper maintenance it will underperform. The new LEED requirements call for ongoing commissioning.

The second thing to change is occupant usage. You may have daylight sensors so the lights go out when somebody leaves a room, but if occupants don't know how to use those features, your energy savings won't be there. If you have these systems in place and people show up and plug in their personal space heaters, you're going to have more energy usage than the projections had shown.

So the new LEED requirements try to take away some of those factors and try to boos the energy efficiency aspect of LEED. It's the same fundamental process, it changes a little bit about how you go about designing and building.

Should corporate counsel working on LEED issues turn to outside lawyers or other specialists?

There are a few different reasons why a company would want to consult with an attorney if they're considering LEED certification. One of them is really a fundamental matter of knowledge with respect to contract review and keeping tabs over contactors, architects, engineers involved with the job. There are a number of form contacts now that do contemplate LEED certification. If you're LEED-certified, for example, you may be eligible for certain tax incentives or other incentives, whether from federal, state or municipal governments. There have been lawsuits filed by virtue of an owner thinking that once they do this, they'll qualify for all these tax incentives. Lo and behold, a mistake is made and the certification is not achieved--or even by virtue of no mistake, certification isn't achieved--so the owner loses out on that incentive they had depended upon. Without a contract that allocates responsibility for that, you have a lot of questions that aren't going to be answered, and that has spurred litigation in the past.

Although some of the form contracts now contemplate that situation, it's still a good idea to have an attorney go over the documents to make sure all the bases are covered, particularly with respect to something like LEED, which has only been around for 10 years--there's really not a lot of precedent out there about those situations.

How have the economic downturn and recovery affected companies' LEED activity?

Before the big collapse of the economy, there probably were more instances of doing it because it was trendy and "green"--they can all hold hands and feel good about themselves. When the bust hit, and especially in last six to 12 months, I've seen that motive more or less fall off a cliff.

Right now it's much more about return on investment, and how can you justify the perceived additional expense? Cost projections vary, but the bottom line here really is return on investment. If anything, there's a fair degree of "green fatigue" where sometimes even the return on investment message sometimes can be lost for fear it's simply going to be a feel-good exercise as opposed a business decision, when in essence the research bears out that it is a business decision on lots of levels.

Can businesses adopt LEED principles without incurring all the expenses of LEED certification?

Certain aspects of LEED certification are more costly than others. It's not at all uncommon for a client to say they'd like these features but not others. It would be hard for me to pick out exactly which features would be doable because the general concept of LEED certification deals with "integrated design," which means that different aspects of the building--from the site layout to materials used to the HVAC system to the occupant usage. There are so many different ways these systems relate to each other, and that's where the architects and engineers need to come in and say, "You don't need to do this, but if you don't do that it's going to impact this." If you use certain types of lights, they'll emit heat, and that will affect the HVAC system you need.

So yes, there are things you can do to not achieve LEED certification that provide the benefit without the cost of achieving LEED. But what those might be is really going to depend on your specific project.

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