This article first appeared on my Green Building Law Update blog. The blog is intended for the entire environmental industrial complex, .. not just lawyers.

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The U.S. Green Building Council is soliciting comments on its proposal to change the prerequisites of the current LEED 2009 rating system increasing the minimum energy performance thresholds.

Rick Fedrizzi, USGBC CEO and founding chair, announced on October 29, 2014 that users will be able to register projects under the LEED 2009 rating system until October 31, 2016. That extension from June 27, 2015, the original date LEED 2009 registration was to close, was occasioned by the delay in LEED v4. But now, USGC is proposing an “update” (i.e., a substantive change) to LEED 2009.

It is difficult to argue against the good intentions of establishing minimum levels of energy efficiency to reduce the environmental and economic impacts associated with excessive energy use. But the proposed actual change in the prerequisites for LEED approval, after an express commitment that LEED 2009 would remain open for registration, is dramatic.

Today, the Minimum Energy Performance prerequisite, using Option 1, Whole Building Energy Simulation, requires that the applicant,

Demonstrate a 10% improvement in the proposed building performance rating for new buildings, or a 5% improvement in the proposed building performance rating for major renovations to existing buildings, compared with the baseline building performance rating.

The proposal is,

For projects that register after XX/XX/XX and are subject to the four point mandatory minimum, demonstrate an 18% improvement in the proposed building performance rating for new buildings, or a 14% improvement in the proposed building performance rating for major renovations to existing buildings, compared with the baseline building performance rating.

The referenced energy standard and modeling requirements do not change and still require the applicant to calculate the baseline building performance rating according to the building performance rating method in Appendix G of ANSI/ASHRAE/IESNA Standard 90.1-2007 (with errata but without addenda 25) using a computer simulation model for the whole building project. That is, this is not a move to the newer 2010 version of the standard.

The effective date of this change will be 30 days after the ballot period, if approved. Thus, the change will apply to LEED 2009 projects registering during the period between 30 days post ballot and October 30, 2016 (the last day to register a LEED 2009 project).

Note, also new point thresholds are provided for different building types (e.g., health care) to align the effective percent increase in performance.

You can read the specific changes in the Rating system document.

Public comment is open to everyone, USGBC member or not and the comment period runs through November 13, 2015. Comments can be submitted in two ways, either at the LEED Credit Library or through the LEEDuser discussion forums.

Voter registration opens on November 30, for USGBC members who want to vote on the proposed update as consensus body members, with a winter 2015 balloting contemplated.

Again, it is difficult to argue against increasing energy efficiency, but will this change LEED 2009 kill the goose that laid the Golden eggs? Most certainly not, but many are suggesting the destabilizing effect of changing a rating system mid stream, with little advance notice, cuts against the certainty that the real estate industry craves (.. even in this instance when the window will only be for those projects registered with GBCI from mid January, 2016 through October 31, 2016). Given that most building projects are budgeted, programmed, planned and designed over a period of years, to propose a substantive change, that will have significant first cost impact, to be effective in a matter of weeks, will reverberate throughout the building industry and, no doubt, expose participants to increased liability for this not programmed change. Additionally, projects attempting to comply with governmental mandates or contractual obligations for LEED certification may create jeopardy.

You are urged to take advantage of the fact that USGBC is soliciting public comment. If you support the update make yourself heard. If that comment is negative and clear about the risk to the LEED brand and market share, maybe this proposal will never get as far as being balloted.

Everyone involved with LEED projects should carefully monitor this blog for more information on the proposed update and consider registering new projects before the (as yet unknown) effective date.

And all engaged in the green building industry should promptly review their contracts to determine the implications of the proposed LEED update and additionally what amendments to contracts may be necessary and proper.