“In the LUPE” Newsletter Legal Articles

Thinking Globally, Acting Locally

Introduction

After months (perhaps years) of hard work, your project achieved LEED® certification. But months (perhaps years) after the plaque was hung, you get word that somebody has challenged your certification. What happens next?

This Alert will answer that question below, but first a contrasting scenario: You put in the same months (years) of hard work only to be denied (you believe wrongfully denied) LEED® certification. What can you do?

The latest iteration of LEED® (“v.3”) is governed by the GBCI LEED Certification Policy Manual¹, which includes a formal challenge mechanism that is administered by the Green Building Certification Institute (“GBCI”)². This Alert presents a summary of this challenge mechanism so that green building professionals may be familiar with their right to present, and/or defend against, such a challenge.

Pre-v.3 Challenge Procedure

Prior to LEED® v.3, no written procedure existed to challenge certification. So the Northland Pines challenge dispute (discussed in more detail at our Green Building Law blog, www.OhioGreenBuildingLaw.com) represents the template for how such challenges are administered. Basically, any person can challenge the certification, there is no stated deadline or due date to file a challenge, and the USGBC has full discretion to either reject the challenge or conduct a formal review. If the USGBC determines that a review is appropriate, the USGBC has discretion regarding how the investigation is conducted. Upon conclusion of the investigation, the USGBC’s decision is final.

Synopsis of LEED v.3 Challenge Procedure

For projects seeking certification under v.3, the GBCI Certification Challenge Policy (the “Challenge Policy”) governs. As a preliminary matter, the burden to demonstrate the veracity and accuracy of the documentation submitted when seeking LEED® certification is upon the Project Manager and the Owner. GBCI may revoke previously-granted LEED® certification, or take other action, if GBCI determines that credits/prerequisites were granted based on erroneous determinations or inaccurately or falsely submitted documentation.

As with the prior version of LEED®, under the Challenge Policy there is no requirement that a person seeking to challenge certification establish either “standing” (a legal concept that basically means having a legally protectable and tangible interest at stake) or involvement in the project. Similarly, the Challenge Policy enumerates no deadline within which a challenge must be filed. If a challenge is filed, GBCI has the discretion to either investigate the challenge or decline to investigate. GBCI may also file a challenge and/or institute an investigation of its own volition.

Complainants must submit a detailed written statement. GBCI requires that the complainant identify him/herself. If GBCI determines that the complaint is frivolous or not relevant to credits required for LEED certification, no further action will be taken.

Should GBCI determine that the allegations appear credible and are founded on the error or inaccuracy of GBCI, or if the veracity of the documentation submitted in support of the credits/prerequisites are in question, GBCI shall proceed with its investigation. At the GBCI’s discretion, this investigation could include a site visit.

If GBCI determines after investigation that the facts show that sufficient credits are demonstrated to meet the LEED certification, then the complainant will be notified that no further action will be taken.

Procedure if GBCI Determines Facts Do Not Support Certification

If GBCI finds that the facts do not support sufficient credits to meet the LEED certification previously granted, GBCI shall transmit a statement of allegations to the Project Manager and Owner, setting forth the affected credit/prerequisite and the facts constituting the inaccurate grant of credit or prerequisite.

Within thirty days from receipt of the statement, the Project Manager and/or Owner may request an oral hearing (in person or by phone) or a review by written briefing for the disposition of the matter. Regardless of which option is chosen, the Project Manager and/or Owner bears its own expenses.

If thirty days pass and neither the Project Manager nor Owner dispute the allegations, or request a review or hearing, then both the Project Manager and the Owner consent to GBCI rendering a decision on the evidence before it.

In the event of a dispute, the GBCI may (at its discretion) offer the Project Manager and the Owner the opportunity to accept a specific course of corrective action showing alternatives for meeting or replacing the affected credits/prerequisites so that LEED certification may be maintained in lieu of proceeding with the requested written review or hearing. If the Project Manager and/or Owner is unwilling to accept GBCI’s offer, the requested hearing or written review will proceed. The oral hearing (be it in person or by phone) appears analogous to an arbitration proceeding in that the Project Manager and/or Owner may appear (with or without the assistance of counsel) and examine and cross-examine any witness under oath, and produce evidence on its behalf.

Challenge Hearing Procedure

If either the Project Manager or the Owner requests a hearing, the GBCI Chair (in consultation with the GBCI President) shall appoint three persons to serve on an Appeals Board, each of whom shall be qualified by virtue of training and experience to have the appropriate technical knowledge in the relevant LEED Rating System.

If a written review is requested, GBCI will forward the allegations and response of the Project Manager and Owner to the Appeals Board. Written briefing may be submitted within thirty (30) days following receipt of the written review request by the Appeals Board, which will render a decision based on the record below and written briefs (if any) without an oral hearing.

If an oral hearing is requested, GBCI shall forward the allegations and response of the Project Manager and/or the Owner to the Appeals Board. GBCI shall also designate one staff member to present the allegations and any substantiating evidence, examine and cross-examine witnesses, and otherwise present the matter during the hearing.

The Appeals Board will schedule a hearing after the request is received, allowing at least thirty (30) days to prepare, and will send a Notice of Hearing to the Project Manager and to the Owner identifying the time and place selected by the Appeals Board. Failure to respond to the Notice of Hearing will be deemed to be consent for GBCI to revoke LEED certification.

The Appeals Board, GBCI, the Project Manager, and the Owner may consult with and be represented by counsel, make opening statements, present documents and testimony, examine and cross-examine witnesses under oath, make closing statements and present written briefs as scheduled by the Appeals Board. But formal rules of evidence shall not apply.

Post-Hearing Procedure

The Appeals Board will issue a written decision following the review or hearing and any briefing. The decision will contain factual findings, conclusions of law, and any sanctions applied. If the Appeals Board finds that sufficient credits/prerequisites can be demonstrated to support the award of LEED certification, no further action on the matter will occur.

If the Appeals Board finds that credits/prerequisites are not sufficient to support the award of LEED certification, the Project Manager and/or Owner may further appeal the decision to the GBCI Board of Directors.

Board of Directors Appeal Procedure

Within twenty-five (25) days after receipt of the challenge decision from the Appeals Board, the Project Manager and/or Owner may request an appeal of such decision. The GBCI Board of Directors hears appeals of certification challenge decisions. In order to overturn a certification challenge decision of the Appeals Board, the Project Manager/Owner must demonstrate that the decision was “arbitrary or capricious.”

GBCI may (at its discretion) file a written response to the appeal request. Written briefing may be submitted within thirty days following submission of the appeal request.

The GBCI Board of Directors will render a written decision based on the record and written briefs (if any) without oral hearing. The decision is final.

Based on the decision of the GBCI Board of Directors, GBCI shall adjust the points previously awarded, adjust the LEED certification category previously awarded, and/or remove the project from its website and require the Project Manager and the Owner to remove and return the LEED certification plaque and certificate.

Conclusion

Prudent green building professionals will have at least a basic understanding of the Challenge Procedure even if they have never been involved in a challenge. As a concerned member of the green building community, LNL is here to help green professionals become more familiar with their right to present, and/or defend against, a challenge.

For further information, please contact Dave Scott at 614-229-4455.

¹The manual is available Here.

²The various LEED Rating Systems™ governed by the GBCI LEED Certification Policy Manual are identified Here.