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Robin E. Snyder
Senior Member
Username: robin

Post Number: 489
Registered: 08-2004
Posted on Wednesday, November 20, 2013 - 10:18 am:   Edit PostDelete PostPrint Post

Lynn Javoroski FCSI CCS LEED® AP SCIP Affiliate
Senior Member
Username: lynn_javoroski

Post Number: 1728
Registered: 07-2002

Posted on Wednesday, November 20, 2013 - 10:57 am:   Edit PostDelete PostPrint Post

More on this:

Mark Gilligan SE,
Senior Member
Username: mark_gilligan

Post Number: 616
Registered: 10-2007
Posted on Wednesday, November 20, 2013 - 01:04 pm:   Edit PostDelete PostPrint Post

There is an argument that adoption of requirements that private projects obtain LEED Certification are illegal.

Steven Bruneel, AIA, CSI-CDT, LEED-AP, EDAC
Senior Member
Username: redseca2

Post Number: 418
Registered: 12-2006

Posted on Wednesday, November 20, 2013 - 01:29 pm:   Edit PostDelete PostPrint Post

The map on Lynn's link certainly looks a lot like some recent election night maps.
Senior Member
Username: tsugaguy

Post Number: 305
Registered: 06-2005

Posted on Wednesday, November 20, 2013 - 09:07 pm:   Edit PostDelete PostPrint Post

Mark's digital commons link is quite interesting, I was going to say well then ASHRAE 90.1 is unconstitutional too then, until I got to thinking, the difference is a specific edition date adopted...skip to page 16 if you like... That about sums up this paper. And the suggestion to have amendments. I haven't heard of 90.1 amendments, yet. The principle makes sense and certainly applies with the building code.
Mark Gilligan SE,
Senior Member
Username: mark_gilligan

Post Number: 617
Registered: 10-2007
Posted on Thursday, November 21, 2013 - 01:22 am:   Edit PostDelete PostPrint Post

There are several related legal principals..

The jurisdiction can only adopt specific versions of a standard. Later amendments to the standard are not enforceable unless the jurisdiction specifically adopts these amendments after they have been proposed.

The jurisdiction cannot in general delegate the adoption of regulations and their enforcement to a non governmental entity such as the developers of LEED. A private or public entity can contractually require LEED compliance on their projects but the local or state regulators cannot do so when the detailed requirements are not known when the ordinance was adopted.
Peggy White, CCS, CCCA, LEED AP BD+C
Senior Member
Username: peggy

Post Number: 66
Registered: 07-2007
Posted on Thursday, November 21, 2013 - 10:44 am:   Edit PostDelete PostPrint Post

Yawn. This is a continuation of the on-going strategy of the wood and chemical industry to ban LEED, and to promote their industry developed green building rating system of Green Globes (aka GreenWash). This has been going on since LEED was first developed, and the law-writing is their latest tactic in response to the success of LEED.

Green Globes was developed by the wood industry to promote their non-sustainable forestry practices as being sustainable, and GG is now being backed by the chemical industry, who are fearful of transparency. Gee, I wonder why... To quote the chemical GG backers comments to the USGBC: "You thought the wood industry was bad - we will destroy you."

These law making efforts are much like ALEC's methodology to get what they want - industry dictates to lawmakers what bills to put forward. Note the mention of ANSI in the Ohio law. This is code for promoting Green Globes, which was supposedly developed under the ANSI process, although that is currently being challenged from within the GG organization, causing one long time GG Board member to resign recently.

Scott McIntosh-Mize
Senior Member
Username: scott_mize_ccs_csi

Post Number: 87
Registered: 02-2009

Posted on Friday, November 22, 2013 - 03:57 pm:   Edit PostDelete PostPrint Post

Please don't let the fact that you don't like who is behind the challenge, or what you believe they're trying to accomplish, blind you to underlying issue:

It is not legal (at least in the US) for the government to delegate rule-making authority or the adoption of regulations to non-governmental organizations.

You really don't want that, anyway. You really don't want an autonomous organization free of legislative oversight to have rule-making authority. (They have that in UK and Ireland; it's called a "quango" and they're a creeping, officious nightmare. http://en.wikipedia.org/wiki/Quango)

The problem with giving state power (especially unaccountable state power) to people you like/agree with is that, in a representative government, that power will sooner or later be in the hands of people you disagree with/don't like.

We have a system of checks and balances, and there is no good reason to build more structures that go around it – not in the name of sustainability, or anything else – unless, like former Energy Secretary Steven Chu, you consider your fellow Americans “teenage kids [not] acting they way they should act” and need to be told what to do by their betters.

Rick Cook said it best: “The key to understanding the American system is to imagine that you have the power to make nearly any law you want, but your worst enemy will be the one to enforce it.”

Have a great weekend.
Bruce Maine
Senior Member
Username: btmaine

Post Number: 20
Registered: 03-2011

Posted on Friday, November 22, 2013 - 07:04 pm:   Edit PostDelete PostPrint Post

I think some are missing the point. Buildings are designed and constructed to the AHJ. But a hospital, for example would need to comply with specific requirements from the Joint Commission or FGI. All LEED does, as well as other schemes, is simply raise the bar. A wide variety of credits can be pursued without infringing on any adopted code. It's the Owner's prerogative, private or public, to seek a certification while still maintaining any legal requirements.
Bruce Maine CDT LEED AP
Mark Gilligan SE,
Senior Member
Username: mark_gilligan

Post Number: 618
Registered: 10-2007
Posted on Friday, November 22, 2013 - 10:45 pm:   Edit PostDelete PostPrint Post

Building are designed and constructed to comply with the adopted regulations. For example a town City Council would adopt the regulations and the building department would enforce them. The building department can only enforce what is in statutes or formally adopted regulations.

Building regulations are laws.

We are not talking about any infringement on an adopted code we are talking about a violation of a basic principal of our system of government. The legislature, as representatives of the public, adopts laws. It is well established that the legislature can only delegate this role in very limited circumstances.

The legislature can delegate limited rule making powers to government agencies. This is the way many states adopt building codes. But neither these agencies, the state legislature, or local governments can give a private entity to write and enforce regulations.

When the state requires private entities or local governments to obtain LEED certification they are giving LEED the authority to determine the rules and whether or not the project complies with the rules.

There is no problem with a private or governmental entity deciding to obtain LEED certification on projects they own but there is a major problem when the government passes laws that requires other entities to obtain LEED certification.
Senior Member
Username: tsugaguy

Post Number: 306
Registered: 06-2005

Posted on Sunday, December 08, 2013 - 05:23 pm:   Edit PostDelete PostPrint Post

A key point of the digital commons paper Mark linked to, as I mentioned beginning on page 16, seems to be that the adoption of rating system like LEED as a standard would be legally acceptable according to this author IF the jurisdictions are adopting a specific edition/date - correct? Similarly, the ASHRAE standard is authored by a private organization and has long been referenced in the IBC, with an edition date in an appendix to the IBC.
Mark Gilligan SE,
Senior Member
Username: mark_gilligan

Post Number: 622
Registered: 10-2007
Posted on Sunday, December 08, 2013 - 05:30 pm:   Edit PostDelete PostPrint Post

While the adopted standards need to be specific requiring LEED compliance is also places LEED in the position of enforcement which I do not believe is the case with ASHRAE.
Senior Member
Username: tsugaguy

Post Number: 309
Registered: 06-2005

Posted on Sunday, December 08, 2013 - 07:19 pm:   Edit PostDelete PostPrint Post

Good point -- then for jurisdictions that wish to adopt LEED, should the building official be the enforcer of complying with the minimum required certification level, in the case of public entities?
Mark Gilligan SE,
Senior Member
Username: mark_gilligan

Post Number: 623
Registered: 10-2007
Posted on Sunday, December 08, 2013 - 09:08 pm:   Edit PostDelete PostPrint Post

Since you cannot obtain LEED certification unless USGBC does the certifying, they own the name, you can't have it bestowed by the jurisdiction. You could create a LEED equivalent but it would not be LEED.
Ronald L. Geren, FCSI, AIA, CCS, CCCA, SCIP
Senior Member
Username: specman

Post Number: 1167
Registered: 03-2003

Posted on Sunday, December 08, 2013 - 09:27 pm:   Edit PostDelete PostPrint Post

The LEED equivalent would be the IgCC, even though it is not as "leading edge" as LEED claims to be.
anon (Unregistered Guest)
Unregistered guest
Posted on Monday, March 03, 2014 - 03:40 pm:   Edit PostDelete PostPrint Post

it just keeps getting better. LEED Exposed:

Jo Drummond, FCSI
Senior Member
Username: jo_drummond_fcsi

Post Number: 57
Registered: 06-2007
Posted on Monday, March 03, 2014 - 09:04 pm:   Edit PostDelete PostPrint Post

This afternoon, I was invited to participate on a project team as the specifier from a major California public university for a sizable addition and site project. In 195 pages, the RFQ said, among other things, "the architect shall obtain at least a LEED Gold rating".

In part, because of this, I passed on becoming involved with the project.
William C. Pegues, FCSI, CCS
Senior Member
Username: wpegues

Post Number: 908
Registered: 10-2002

Posted on Tuesday, March 04, 2014 - 12:06 am:   Edit PostDelete PostPrint Post


To Anon, when I read the article, there is something somewhat strange mentioned in it...

"Take the Green Building Council’s Washington headquarters. Replete with the group’s top green-energy accolade, the platinum LEED certification, the USGBC’s main base comes in at 236 EUI."

When I go to the USGBC web site, they give their primary address as 2101 L Street, NW, Washington, DC. I think the writer of the article is needs some fact checking since as far as I know the INTERIOR DESIGN of the USGBC space may be a Platinum Interiors rating, but the building itself is not a Platinum rated building. I know, its one of my office's projects, I wrote the specifications for it. It probably could have gotten a rating, but the Owner specifically did not want to go for it, and at the time it was not required.

The building was not purpose built for USGBC, it was built as a speculative office building and was completed in 2007. The project was a major renovation having been originally built in 1975 it was gutted of everything (including the facade) except the structural columns and slabs - this is not uncommon in DC where tearing down an existing building can result in the loss of a floor due to height restrictions.

Anyway, not that its relevant to the issue of poor energy performance in LEED rated buildings, but accusation of poor performance for a Platinum rated building is simply the reporter's error. Its performance as a building with a Certified rating does not speak well either, but the building owner is making no claim that this is a Platinum LEED building.

If you put in the address of 2101 L Street NW, Washington DC into google search, you will get a link to the building Owner's marketing site for this building. If you scroll down towards the bottom of the page you will see that it states:

"LEED Certification: Certified"

It also states that it is "Energy Star: Yes".

These were pursued separately by the Owner after the building was completed, the original design and construction documents for the project included no requirements for either Energy Star or LEED.

William C. Pegues, FCSI, CCS, SCIP Affiliate
WDG Architecture, Washington, DC | Dallas, TX
anon (Unregistered Guest)
Unregistered guest
Posted on Tuesday, March 04, 2014 - 01:33 pm:   Edit PostDelete PostPrint Post

Thanks, William, for the additional information.

It would be interesting to know exactly how many LEED certified projects meet the predicted energy performance.
Richard Howard, AIA CSI CCS LEED-AP
Senior Member
Username: rick_howard

Post Number: 275
Registered: 07-2003

Posted on Tuesday, March 04, 2014 - 03:33 pm:   Edit PostDelete PostPrint Post

I live and work in Columbus and I have an in-law with connections in the Statehouse. I have also done some time in a Congressional office working with the legislative aid. Everything you ever heard about the unseemly business of making laws is only half the truth. It has been more than 40 years since I was there and I have almost gotten the smell to fade away.

There is much more to this issue than what has been reported in the national media. There are a lot of material manufacturers here in Ohio who look at the reporting requirements in LEED v4 as exceedingly cumbersome and invasive of their patents. They don't want to appear to be standing in the way of progress, but they might be able to get politicians do it for them. In politics, where there is smoke, there is money being burned.

Secondly, we have a longstanding tradition in Ohio of being slow to adopt new requirements. Our state building code is always a version behind ICC. That means all of our standard reference documents are also behind. So why shouldn't LEED be behind one version? (I actually heard this argument)

Finally, the Ohio Revised Code prohibits procurement practices that favor one entity over another. The current LEED mandate is seen by some as encroaching on this principle, or at least that's their excuse.
Mark Gilligan SE,
Senior Member
Username: mark_gilligan

Post Number: 646
Registered: 10-2007
Posted on Wednesday, March 05, 2014 - 01:26 pm:   Edit PostDelete PostPrint Post

"So why shouldn't LEED be behind one version?"

If we can get beyond questions of the legality of requiring compliance with LEED, to require compliance with an old version of LEED would mean that USGBC would have to go along with it. You are not requiring compliance with a standard, rather you are requiring certification by a legal entity. Can you compel USGBC to do what they do not want to do? I suggest not.

There is strong case law that says once a standard is incorporated into building regulations that there is no longer a copyright.

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