New Congressional LEED spending restrictions for DOD

Below is a summary of the new Congressional LEED spending restrictions for DOD prepared by one our firm attorneys, George Nicholos.

Sudden Policy Re-direction / Congress Restricts LEED Spending at Department of Defense

The Department of Defense (DoD) has been at the forefront of implementing goals in areas of energy efficiency, renewable energy, recycling, water conservation, and use of sustainable building strategies which were set by Executive order 13423 which was enacted by President George Bush in 2007. In fact, the U.S. Navy led the DoD’s effort as it was the first to adopt Leadership in Energy and Environmental Design (LEED) certification in 2000, and as late as May 2011 announced that all applicable Department of the Navy Military Construction (MILCON) projects for FY11 and FY 12 would be required to achieve sustainable design requirements equal to or above the LEED Gold requirements with certain exceptions, and by FY13 would be required to achieve requirements equal to or above the LEED Gold requirements without exceptions.

However, on December 15, 2011 Congress passed the National Defense Authorization Act which was recently signed into law by President Barack Obama on December 31, 2011. According to Section 2830, the DoD will now be required to review its energy efficiency building practices, report to Congress regarding its strategy for its continued use of design and building standards for sustainability goals, and to curtail any spending associated with the implementation of any LEED Gold or Platinum certifications. With an apparent reversal of policy, Section 2830 states “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.”

By exemption, the DoD may continue to pursue projects seeking LEED Gold or Platinum certifications, however it may only do so if those measures impose no additional costs to the department and are supported by a mandatory cost-benefit and return on investment analysis for energy efficiency attributes and sustainable design measures. It is too early to determine whether the DoD will continue to pioneer LEED green-sustainability strategies in its facilities when faced with anticipated budget cuts. It is also too early to determine whether this sudden shift in policy is due to legislative lobbying efforts from competing building certification systems such as the Green Building Initiative (GBI) seeking equal standing within the federal government or by similar efforts from competing timber certifications with the sole timber certification presently accepted by LEED, yet hotly contested.

In either case, based on its prior commitment, it is highly unlikely that the federal government will retreat from promoting sustainable green building strategies in its projects, however for now, builders and designers should look for DoD projects to likely forego LEED Gold and Platinum certifications as well as advanced design and system attributes they typically include. Builders and designers should also watch to see if the federal government retains LEED as its sole certification standard for sustainable design or whether it will be replaced by a competing standard, or hybrid federal green building certification system which will likely require additional training and subsequent readjustments.