Jonathan C. Kinney and Timothy R. Hughes//May 31, 2010
Jonathan C. Kinney and Timothy R. Hughes//May 31, 2010//
The current green building landscape is dominated by the United States Green Building Council (USGBC) and its Leadership in Energy and Environmental Design (LEED) program. USGBC has seen a dramatic growth in its membership and the LEED program has become synonymous with green building.
Lawyers interested in developing a legal practice incorporating sustainability, land use, planning, design and construction must know and understand the LEED process and requirements.
Our firm decided to invest heavily in that education process. We opted to have a broad cross-section of lawyers and personnel in our firm prepare for, take and ultimately pass the test to become LEED Accredited Professionals (LEED APs). Those professionals, eight lawyers and a paralegal in our 40-lawyer firm, span our practices in land use, planning, real estate, leasing, corporate and business law, and litigation. We have already seen the benefits of having a depth and cross-section of capability and experience in the sustainability arena.
The LEED system
The LEED system involves the design and construction of green buildings across a matrix of specific criteria. There are certain basic requirements that every LEED project must attain as prerequisites to qualify for any level of LEED certification. For example, each project seeking LEED certification must pledge to provide for specific types of recycling for occupants of the structure. The project team seeks approval for specific available credits in a variety of categories: sustainable sites; water efficiency; energy and atmosphere; materials and resources; and indoor environmental quality. The project must achieve a specific number of credits to qualify for each level of LEED, whether certified silver, gold or platinum.
The LEED system involves various rating systems that apply to different types of structures. There are rating systems for New Construction, Existing Buildings, and Core and Shell. LEED for Homes is a newer program addressing residential home construction. The new LEED for Neighborhood Development expands LEED into the land use and planning process. With each of these rating systems, the LEED AP for the project is responsible for coordinating the submission of documentation and verification of materials to demonstrate compliance with credit requirements. Submission and verification is handled online via the Green Building Certification Institute (GBCI), a non-profit sister organization formed by USGBC.
The LEED exam
The examination to become a LEED AP is rigorous and requires an investment of time and energy. While the exam is challenging, it is certainly on an order of magnitude or two less than the preparation level required for the bar examination. Each of the individuals in our firm who took the exam passed on the first try. We would note that we had the benefit of taking a very useful crash preparation course that geared our study efforts prior to the exam. We would strongly recommend such a course for those interested in taking the exam as it provides a great deal of substantive information, but also includes the test taking specifics that are so helpful in preparing for standardized testing.
The exam involves a lot of memorization … exactly what percentage of recycled material qualifies for how many credits? Exactly what water use reduction qualifies for a water efficient landscaping credit? Suffice to say you will need to be very familiar with a 600-page handbook for the LEED for New Construction Test, but much of the material boils down to a far smaller body of information as the material becomes familiar.
The process has changed a bit since we took the exam. Applicants are required now to first take and pass the LEED Green Associate test prior to qualifying to take examinations geared towards a specific rating system, such as LEED for New Construction. Each of the LEED APs in our firm are designated as “legacy LEED APs” with generalized credentials across the range of projects. We are considering whether some or all of us will opt into the new system, an option available for roughly another year to legacy LEED APs.
LEED experience in practice
Our firm has traditionally had a strong land use, planning, real estate and finance practice. As such, our land use lawyers have addressed LEED-related issues for a number of years. The LEED focus has been honed by our geography: we are based in Arlington County, and Arlington has been a very early adopter of sustainable development practices.
The requirements to obtain approval for projects via the site plan process continue to evolve in Arlington. Arlington adopted the “carrot” approach of including bonus density for projects reaching specific levels of LEED certifications. This process, including the amount of density and required levels of certifications, has continued to evolve over time.
We have seen a significant expansion of interest in green building topics and information over the last several years. As the general economy has floundered, especially the real estate and construction sectors, green building has continued to demonstrate some vitality and development. The efforts of state and local government to mandate green building, plus the availability of federal funding, stimulus funds, and tax incentives, has continued to generate activity in this arena. Contractors and subcontractors have jumped on board by educating themselves on green building, obtaining LEED AP status, and adopting sustainability policies of their own.
We have seen interest in review of contracts and leases to include sustainability into the fabric of form contracts and agreements that are project specific. Finally, looking down the road, we see risk management and liability issues that can arise from green buildings in general and LEED projects specifically. All construction projects are fraught with risk and the injection of new and different requirements, including the procedural overlay of the voluntary USGBC LEED program, generates its own additional risks and potential claims above and beyond those present on traditional construction projects.
To LEED or not to LEED ….
In our estimation, sustainability will continue to be a core discussion for land use, real estate, design and construction into the future. We believe that numerous economic, historic, scientific and political threads will combine to keep sustainability front and center in the planning and building process. Given this basic belief, it is critical to stay educated, informed, and on the leading edge of these trends.
It may be that at some point, government regulatory action on climate change or energy efficiency outpaces portions of LEED or even the entire rating system. That has yet to happen. Being on the leading edge today means knowing and understanding what the basic LEED energy efficiency requirements are and how developing form codes may change the current landscape. The fast- moving changes in this arena mandate that lawyers practicing in land use, real estate and construction gain a solid appreciation for the regulatory, code and certification systems that are used by or required of clients. That is the only way to understand the risks and opportunities our clients face and to shape our counsel to meet those challenges.
Jonathan Kinney, LEED AP, is a shareholder and Timothy Hughes, LEED AP, is of counsel to the law firm of Bean, Kinney & Korman in Arlington. Website: www.beankinney.com. They can be reached by phone at 703-525-4000. For those interested in reading more regarding sustainability and green building related issues, please visit their blog at www.valanduseconstructionlaw.com.