June 26, 2009, is the last day Green buildings will be able to register using the existing version of LEED.

LEED is the now well known acronym for Leadership in Energy and Environmental Design, the U.S. Green Building Council’s green building certification system.

Building owners, operators and tenants are advised to promptly evaluate the implications of LEED 2009 (including first dollar costs, operating expense savings, environmental efficacy, etc.) on contemplated Green building projects.

While a Green building owner is usually not required to obtain a certification that a building is indeed Green, third-party certification may be required to qualify for benefits such as government tax credits, or may be required if the building is in one of the increasing number of jurisdictions that mandate Green certification for new construction and renovations (today, in Maryland including Baltimore City, Howard County, and Montgomery County) or may be otherwise mandated (including in many instances today, where Fortune 500 companies have adopted corporate Green practices programs, along with the federal government, many state and local governments that are all requiring Green premises).

While there are several private and nonprofit Green building certification programs in the marketplace, including Green Globes, BREEAM, and LEED, with over 20,000 member companies and over 100,000 LEED Accredited Professionals, the USGBC’s LEED program is by far the most widely accepted not-for-profit Green building certification program in the United States.

LEED is the third-party certification program that is arguably the nationally accepted benchmark for the design, construction, and operation of high performance Green buildings. LEED promotes a whole-building approach to sustainability by recognizing performance in “five key areas of human and environmental health: sustainable site development, water savings, energy efficiency, materials selection and indoor environmental quality.”

The USGBC announced on November 18, 2008, that, in a balloting among its members, LEED 2009 had been approved.

LEED 2009 is not a wholesale overhaul, but rather a refinement and credit realignment of the existing LEED program. The number of available points has risen from 69 under LEED version 2 to 110 (actually a 100-point scale plus 10 bonus points) under LEED 2009. More points are now needed to reach each level of certification. Reaching LEED Certified will now be 40 points or more (versus 26 points under v2); Silver is 50 points (versus the prior 33 points); Gold is 60 (versus 39 points); and Platinum is 80 points (versus 52 points).

The overarching goal for the point realignment of LEED 2009 is to ensure that future buildings certified under its criteria are even greener than those approved to date. In LEED 2009, the highest weightings are now given to building practices that improve energy efficiency and reduce CO2 emissions, to align with the USGBC’s updated goal of climate change mitigation.

And while that goal is widely applauded, the changes in the rating system’s building practices result in significant changes from how a project would be scored under v2 versus v3, such that by way of example, a LEED NC project that was able to earn 33 points and obtain a Silver rating may well not under v3 earn the 50 points required for a Silver rating. This creates a real problem for building owners that must, again by way of example, achieve a LEED Silver rating to comply with the Baltimore City or other mandatory law.

Additionally, existing buildings that were certifiable under v2 as Silver will not be re-certifiable under v3 as Silver, without significant changes in operations and management. Such has very real implications for tenants and landlords alike, that have negotiated expectations into lease documents and the like.

Starting on June 27, all projects will begin using LEED v3, which includes the faster and easier-to-use LEED Online and LEED 2009, the latest v of the rating system.

Projects registered under the v2 rating system can be transferred to v3. This transfer will be free of charge through the end of the year. Beginning Jan. 1, 2010, there will be a new registration fee.

From April 27 through June 26, 2009, new projects can be registered under either v2 or v3.

It is of great import that owners contemplating a LEED certification and professionals advising building owners, consider and weigh the very significant and disparate advantages and disadvantages of registering each project in advance of June 27 using v2 in lieu of v3.

This law firm is working with building owners, operators and tenants in evaluating the implications of LEED v3 on contemplated Green building projects. If we can assist you, please contact Stuart Kaplow well in advance of the June 27 deadline.