The newspaper USA Today has flipped Kermit the Frog’s colorful lamentation “It ain’t easy being green” and taken aim at the U.S. Green Building Council (“U.S.G.B.C.”) by asking the pointed question, “In U.S. building industry, is it too easy to be green?” [1]  The USA Today article stated that more than 200 governing bodies in the United States require LEED certification for new public buildings and that a comparable number of governing bodies award some form of tax benefits or incentives for LEED builders.  However, the article went on to make the following indictment of the points-based LEED green building system, stating as follows:

Across the United States, the Green Building Council has helped thousands of developers win tax breaks and grants, charge higher rents, exceed local building restrictions and get expedited permitting by certifying them as “green” under a system that often rewards minor, low-cost steps that have little or no proven environmental benefit, a USA TODAY analysis has found.

(Id. (emphasis added).)   The USA Today states that it conducted an exhaustive study of 7,100 LEED-certified buildings, and concluded essentially that the system is being gamed.  In criticizing the U.S.G.B.C., the article states further:

[D]esigners target the easiest and cheapest green points  . . . Nearly every design team has won a point for including someone who has passed a LEED exam. . . .

More than 6,000 buildings got credit for using structural steel or concrete, common building materials that the council considers green because they are made from recycled material.  Points also have gone to universities that offer a course on green building, to employers that give workers a video-game room and fitness center and to builders for installing a modern fire-alarm system that “minimizes stresses on the firefighters,” council records show. 

Taking a whiter shade of pale, within hours after the USA Today article became available, U.S.G.B.C.’s President and CEO Rick Fedrizzi fired back, arguing that the development of green building standards is not nearly as black-and-white as the USA Today article makes it seem.  Fedrizzi stated:

LEED is not and never will be a tool for mandatory regulation; it is a voluntary, market-based green building program. . .

LEED isn’t perfect, but it is always improving.  The program is developed by technical committees of the highest caliber and any changes to LEED are commented on by the public and must be approved through a democratic ballot process open to all USGBC members. . . . 

We develop LEED using a consensus-driven process, and while the rate of change may not be fast enough for some who would like to see more requirements that process allows us to work with the building industry to find the sweet spot that ultimately becomes the LEED rating system.  We think we will have more success with the industry’s help than without it.[2]

And so there it is.  On one hand, we have a consensus-driven approach aimed at defining environmental goals, an approach that U.S.G.B.C. claims to involve wide-ranging industry and public participation.  On the other hand, we have an increasingly deeper entrenchment of these admittedly ongoing discussions into the law.  These issues will continue to play out in how the construction industry markets itself, in the political arena, and in our courts.