New Legislation to “Ban LEED” Highlights Concerns about LEED v4

March 17, 2014Articles

In recent weeks, multiple news sources have reported that the Ohio Senate voted to “ban LEED” when it passed Concurrent Resolution Number 25 (“SCR 25”). However, a closer look at SCR 25 reveals that it does not actually ban anything, but merely represents a statement of the Ohio Senate’s formal dissatisfaction with the U.S. Green Building Council's (“USGBC”) LEED v4.

LEED v4 has become controversial at both the national and state levels for its expense and also complaints by some in the manufacturing industry that it will cost jobs and hurt the manufacturing sector. SCR 25 addresses this controversy by purporting to mandate “[t]hat the LEED v4 green building rating system no longer be used by Ohio's state agencies and government entities . . . .” (full text available here)

LEED v4 is opposed by both the timber and chemical industries, as well as by critics who question USGBC’s increasing power over State funded projects. The timber industry objects to LEED v4 because of its reliance on the Forest Stewardship Council (“FSC”) certification process, which is seen by some as unnecessarily burdensome. The American Chemistry Council (“ACC”) objects to LEED v4 because it disfavors the use of vinyl foam, flooring, and windows. At the same time, SCR 25’s sponsor, Sen. Joe Uecker, claims that USGBC has a “monopoly” on sustainability certification. This is seen by LEED v4 opponents as a problem because LEED certification can cost as much as $1 million per project, depending on project size. As a result, some see the USGBC as having too much control over government construction projects that require LEED certification.

In 2007, the Ohio School Facilities Commission (“OSFC”) mandated that LEED be used in all buildings that it funds. This mandate has become increasingly controversial with the introduction of LEED v4. Currently, builders have the option of using the less restrictive LEED 2009 in state school projects, but that will change when USGBC stops taking applications for LEED 2009 certification on June 1, 2015. Since OSFC’s policies require LEED certification, Ohio schools will, in effect, have to conform to LEED v4 once USGBC discontinues LEED 2009 certification. Opponents of LEED v4 support allowing sustainability certification through Green Globes, a less expensive rival to USGBC’s LEED. Though SCR 25 does not directly refer to Green Globes, SCR 25 is most likely encouraging consideration of Green Globes when it urges the Ohio Facilities Construction Commission (“OFCC”), which oversees OSFC, to review “the availability and suitability of alternative private sector green building rating systems, codes, and other standards that advance state energy efficiency and environmental performance objectives . . . .”

Despite SCR 25’s goal of eliminating the State’s reliance on LEED v4, questions remain as to how, if at all, SCR 25 will impact State policies. As a Senate concurrent resolution, SCR 25 is much different than the legislature’s most common form of legislation: the bill. While a bill is generally used to enact or repeal a law and is signed by the governor, a concurrent resolution is usually just a “formal expression of the opinions and wishes of the General Assembly and do not require the approval of the Governor.” See A Guidebook for Ohio Legislators, Enacting Legislation. Most concurrent resolutions either urge the United States government to take some action that the legislature has no authority to address or honor a cause or person that the legislature sees fit to honor. SCR 25 is unusual in that it uses language that resembles a bill, but is otherwise unenforceable and merely a statement of opinion. While there are very limited instances when a concurrent resolution can carry the force of law, SCR 25 is not one of those instances.

Despite the unenforceability of SCR 25, it is certainly indicative of some Ohio legislators’ frustration with LEED v4. SCR 25 could pave the way for future legislation that would actually ban the use of LEED v4 in State projects. Additionally, if SCR 25 passes the House, it could motivate the Republican-run OFCC to change its policies to discourage the use of LEED v4. If anything, SCR 25 has certainly raised awareness of the controversy surrounding LEED v4. And in the end, that is likely what the Ohio Senate intended by its passage.

The very last paragraph of SCR 25 instructs that a copy of the resolution be sent to USGBC. From this, it is fair to assume that the intent behind SCR 25 was not so much to ban LEED v4 as it was to encourage USGBC to address industry concerns about LEED v4’s new rating system. While the battle over LEED v4 is taking place, it leaves general contractors in the planning and bidding phase of major projects implementing sustainability standards with more questions than answers about the future of LEED standards in Ohio and value of LEED certifications in the future.