Facing growing demand for green building certification, builders and consumers alike seek certifications that reflect the green credentials of their architecture. Unfortunately, a rigorous green building certification can be undermined if underlying green product certifications are false or misleading.
The certification programs offered by the U.S. Green Building Council (LEED), the National Association of Home Builders (National Green Building Program), and many others, aim to provide consumers with a meaningful way to ensure that buildings large and small minimize their impact on the environment. Naturally, these certifications are a function of a calculation that weighs many different factors; including factors that resonate with the environmental issues addressed by Federal Trade Commission in the proposed new Green Guides. For example, the LEED program scores projects on “materials and resources” and the National Green Building program scores projects on “resource conservation.” In both cases, these program criteria address the use of renewable and recycled materials – which are the subject to FTC definition under the proposed new Green Guides.
Without getting too deep in the details of the certification programs – there is certainly plenty of debate about the relative merits of the various approaches to green building certification – the key issue to understand is that many certifications utilize a point system in one form or another. And manufacturers of input products have every incentive to market products that help increase “points.” In its public comment to the FTC last December, addressing the new Green Guides, the wallboard manufacturer National Gypsum spelled out how wallboard made from recycled gypsum will increase LEED scores. National Gypsum warned that wallboard incorrectly designated as made from recycled content could potentially represent false points in a LEED score. And of course, it follows that such false points could mean the difference between gold or platinum LEED certification.
Consider the number of factors that go into a LEED score, or a National Green Building Program score, including recycled and renewable building materials; energy efficiency; and use of renewable energy, to name a few. Clearly, the ultimate “scores” that are derived by these programs are only as valid as the underlying certifications and claims that they are built on. So if recycled wallboard is not truly recycled, the score goes down. If input lumber is not truly derived from renewable resources, the score goes down.
If green building certification depends on the quality of underlying green certifications, what does that mean for builders and consumers? A cynic will surely recognize the fact that green building certification may drive unscrupulous and careless manufacturers to overstate the environmental attributes of their products. (People in my profession will anticipate intense legal battles as undermined certifications go sour.)
Without getting discouraged, the pragmatist should recognize that a green building certification is actually the product of a complex equation built on many assumptions. Depending on the magnitude of one’s investment in a certification, diligent review and analysis of underlying certifications may be prudent. And, finally, to the extent feasible, builders and consumers should pay attention to the agreements around green building certifications, keeping track of manufacturer warranties and scrutinizing builder contracts, so in the unfortunate event of a points deduction, the responsible party can be held accountable.
Joseph (Jay) Eckhardt is an attorney at Stoel Rives, LLP, based in Portland, Oregon. Jay writes and speaks frequently on legal issues relating to green marketing and is the editor of the firm’s FTC Green Guides Resource Page.