Oct 2010 , Vol. VI, No.1

Beware of the Far Reach of LEED Minimum Program Requirement #1 and #6

Builders and Contractors Exchange
Weekly Bulletin: 9 Oct 2010

Beware of the far reach of leed minimum program requirement #1 and #6
By: George Nicholos

LAW TIPS

As many are already aware, U.S. Green Building Council Inc., (USGBC) released LEED 3.0 last year. Along with the release came the inclusion of new Minimum Program Requirements (MPRs). MPRs are global requirements above and beyond the respective LEED point categories that every project must comply with to be certified under the LEED rating system. Critically importantly to LEED project participant, if non-compliance with any of the MPRs is discovered at any point, a project risks losing its certification. In addition, where a project is found to be in non-compliance no registration or certification fees will be refunded. Of the seven MPRs instituted by USGBC, Owners, Contractors, Subcontractors, Design Professionals and other LEED project participants should beware of the far reach of MPRs #1 and #6.

Of all of the MPRs instituted, MPRs #1 and #6 are likely to cause LEED project participants the most concern. For instance, how well do you know the environmental laws in your area? Under MPR #1, a LEED project must comply with all applicable federal, state, and local environmental laws and regulations in place where the project is located at the time of design and construction. Under MPR #6, a LEED project must commit to sharing all available actual whole project energy and water usage data for a period of at least 5 years. And this commitment commences when occupancy occurs and must carry forward even if the building changes ownership. One can quickly appreciate the need for additional contractual requirements in the event of a sale or lease of a project to guard against new and unexpected liabilities and subsequent issues that may arise in the event that certification of a LEED project is lost.

Owners, Contractors, Subcontractors, Design Professionals and other LEED project participants must address individual LEED project responsibilities and limitations in their contracts, and specifically address instances where all applicable federal, state, and local environmental laws and regulations may not have been addressed, or where provisions may not have been provided for the availability of whole project and energy data for a period of 5 years.

With the threat of LEED decertification dependent in some instances on full and continued compliance as in MPRs #1 and #6, LEED participants should avoid making any express contractual promises regarding the future performance of LEED projects, or guarantee that the project will obtain and or maintain a particular LEED certification. These measures are necessary to minimize a participant’s liability in the event that projected LEED results are ultimately not achieved or certification is suddenly revoked.

Authored by attorneys, these articles are meant to bring awareness to these topics and are not intended to be used as legal advice. For more information, contact Bill Franczek at 757-446-8600. Visit www .vanblk.com, for our library of Construction Law Tips.  Suggestions for a topic? E-mail bfranczek@vanblk.com.