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February 28, 2013

Is LEED’s future with federal projects under threat?

  • U.S. agencies are facing pressure from the timber and plastics industries to drop LEED requirements.
    Oles Morrison Rinker & Baker LLP


    Earlier this month the U.S Department of Defense released the long-overdue findings of a report regarding energy efficiency and sustainability standards used by the agency for military construction.

    The independent report was issued by the National Research Council in response to a requirement in the 2012 National Defense Authorization Act.

    Significantly, the report reaffirmed the merit of LEED silver “or equivalent” certified buildings for the agency. It concluded the Department of Defense should continue to require both its new construction and major renovations to existing facilities to achieve a LEED silver rating or its equivalent.

    In reaching its conclusion to all but endorse LEED, the National Research Council reviewed studies related to energy efficiency and green building standards and concluded that third-party certification programs offer frameworks for successfully reducing energy and water consumption in buildings.

    However, 10 days prior to the Department of Defense’s announcement, the U.S. General Services Administration released its initial findings surrounding green building, and announced its intent to seek public input regarding the federal government’s use of third-party green building certification systems. Before issuing its final report, GSA is seeking input about which rating systems “are most likely to encourage a comprehensive and environmentally sound approach to the certification of green federal buildings” before making a formal recommendation.

    GSA under pressure

    GSA currently uses LEED as the required certification system for new construction and renovations to existing buildings, and requires at least a gold certification. But this new release seems to indicate GSA is caving in to the political pressures to abandon LEED. Its initial findings conclude that Green Globes, an alternative rating source, might be better suited to the federal government’s requirements for green building, but the choice might be left up to individuals agencies.

    This most recent confusion surrounding LEED at the federal level seems to be coming in response to the various political pressures to abandon LEED launched by the timber and plastics industries.

    (The timber industry has its own lobby, the Sustainable Forestry Initiative, which does not earn credits under LEED. For reasons far too extensive to explain here, the USGBC only awards points to wood certified by the Forest Stewardship Council. This has prompted an attack on LEED by the Sustainable Forestry Initiative. The plastics industry took up a similar charge as it related to potential credits in the LEED 2012 program, prompting certain members of Congress to attack LEED as well.)

    LEED has long been the rating system of choice by the federal government, including a formal endorsement of LEED by GSA in 2006. LEED gained further traction with the Energy Independence and Security Act of 2007, which required federal agencies to use a green building certification system for new construction and renovations of existing buildings. It did not, however, specifically require LEED as the green building certification system.

    In response to that bill, the Department of Defense required all new construction and major repair and renovation projects to be certified at least LEED silver. To date the Department of Defense has been the agency at the forefront of the federal green building trend, with 549 LEED-certified buildings in its portfolio. Most other federal agencies also required LEED certification at some level.

    However, in 2011 Congress instituted a ban on all Department of Defense buildings seeking gold or platinum LEED certification in a measure hidden deep in the National Defense Authorization Act. The law also required the Department of Defense to submit a report to the congressional defense committees on the energy-efficiency and sustainability standards utilized by the Department of Defense for military construction and repair. It also required a “cost benefit analysis, return on investment, and long-term payback for LEED silver, gold, and platinum certification, as well as the LEED volume certification.”


    In addition to essentially endorsing LEED, the report concluded the Department of Defense should seek to establish practices to evaluate the performance of its green buildings once in service to ensure the performance objectives are met, and the measures to reduce levels of energy and water use are cost-effective. It also recommends that the department retain the flexibility to modify green building standards in ways appropriate to the department’s operating environment and mission. Finally, the report recommends that the agency devise an approach to examine the total cost of ownership for the lifetime of the building to aid in decision-making about future investments in Department of Defense buildings.

    What does the report mean going forward? It is hopeful that this study by the National Research Council may convince Congress to lift the ban on LEED gold and platinum certifications for Department of Defense buildings.

    Additionally, if the Department of Defense successfully implements the recommendations of the report, the data compiled about the performance of green buildings will also be vital to the forward movement of the industry. But how this report will be received by Congress, and meshed with the report finally issued by GSA, remains to be seen, along with the future of LEED in the federal government.

    The good news for those in the sustainable building industry is while the future “brand” of the green building certifications may be uncertain, what is certain is that green building and sustainable practices are here to stay for those contracting with the federal government.

    Meghan Douris, an attorney with Oles Morrison Rinker & Baker LLP, advises clients and provides seminars on LEED and green building issues, including those related to federal contracting.

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