On October 25, 2013, the U.S. General Services Administration (“GSA”) concluded that federal agencies should continue to use third party rating systems to evaluate the performance of federal buildings. Specifically, GSA advocated that agencies use U.S. Green Building Council’s (USGBC) LEED green building rating system or the Green Globes system to advance energy efficiency and to save taxpayers’ money. For more info on this decision, click here.

Earlier this year, the GSA released its initial findings surrounding green building in the federal government, but announced its intent to seek public input as to which rating systems “are most likely to encourage a comprehensive and environmentally sound approach to the certification of green federal buildings” before issuing its formal recommendation. See Feb 2013 DJC article.

Under Section 436(h) of the Energy Independence and Security Act of 2007 (EISA), GSA is required to identify a certification system that is “most likely to encourage a comprehensive and environmentally sound approach to the certification of green buildings” and made a recommendation to the Secretary of Energy.

GSA’s decision comes a year after more than 1,250 businesses and organizations urged GSA to continue to use LEED to improve the energy and environmental performance of federal buildings, against push back from other groups. Now, based on the findings of the inter-agency “§436(h) Ad-Hoc Review Group on Green Building Certification Systems,” GSA continues to formally voice its support for LEED and Green Globes as third-party rating system for construction of government buildings.
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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.
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