It appears that, despite media coverage to the contrary, Congress can agree on something. That something is the ban on federal defense spending for the highest LEED certifications. As we initially discussed here in our August 23, 2011 post, the House of Representatives passed the National Defense Authorization Act for FY 2012, which included a ban on LEED gold and platinum certifications. Now, the Senate has confirmed the ban as part of the spending bill passed on December 15, 2011.

Buried deep within the spending bill (in Section 2830, on pages 398-399 of the 565 page bill) is a clause stating: “PROHIBITION: No funds authorized to be appropriated by this Act or otherwise made available for the Department of Defense for fiscal year 2012 may be obligated or expended for achieving any LEED gold or platinum certification.” The bill, however, does permit waiver of the prohibition, if the Secretary of Defense submits a notification to the congressional defense committees setting forth the “cost-benefit analysis of the decision to obligate funds toward achieving the LEED gold or platinum certification.” The notification must also detail the demonstrated payback for the energy improvements and sustainable design features. Significantly, according to the bill, only if achieving LEED gold or platinum certification imposes no additional cost to the Department of Defense is the ban/waiver process avoided. Practically speaking, demonstrating to Congress that there is no additional cost without undertaking the analysis set forth in the waiver process seems unlikely.

On the upside, the bill does set forth a pragmatic attempt to undertake an evaluation of the expenditures associated with LEED before devoting further funding to certification. The law requires that no later than June 30, 2012 the Department of Defense must 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. This report must include 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.” Its report to Congress also must include a strategy for its continued use of design and building standards.

However, unfortunately, by “banning” higher LEED certifications, this bill is essentially undermining years of green building efforts undertaken by the Department of Defense, which – to date – has been the agency at the forefront of the federal green building trend. The ban also ignores the mission behind the LEED certification program which was that LEED was intended to serve as a benchmark for evaluating whole buildings and to be a “definitive standard for what constitutes a green building in design, construction, and operation.” The certification process ensures that the government gets confirmation that the “green” building it contracted for to comply with various executive orders, is in fact the “green” building that is built.

Practically speaking, what this new bill means for the future of DoD sustainability goals as set forth in its Strategic Sustainability Performance Plan is now in question. For example, in May 2011, the Secretary of the Navy, Ray Mabus, stated that all Navy construction projects for FY 2012 and 2013 will be built to achieve sustainable design and construction equivalent to at least LEED Gold standards, with a few exceptions. However, unless Mabus can show it will do so at no additional cost, the Navy will now have to submit waivers for each and every project that sought LEED Gold certification. Whether the LEED Silver “or higher” requirements of the Air Force and Army will also be questioned or banned after the report is submitted in June 2012 also remains to be seen. What is certain is that, while Congress may have waged war on LEED via the Department of Defense, it is unlikely that DoD will be the only agency to suffer the LEED ban and we will continue to monitor the federal government’s treatment of LEED.