Sustainable projects present a plethora of unique issues which must be addressed by an attorney prior to and during construction of the building in order to minimize the potential for future litigation.While design professionals carry insurance it is paramount to consider whether the insurance carried by the design professional is adequate in light of the sustainable nature of this project. Sustainable design is different from the traditional design that many professionals such as engineers and architects engage in and is also in its infancy therefore, giving rise to a greater probability that there could be problems inherent in the design for which the owner may wish to sue the design professional. Likewise, it is important to evaluate the warranty and guarantee language of the products and materials being utilized in the construction to ensure that green construction procedures and installation techniques do not void the warranty for a product. Closely related to the warranty and guarantee issue is the potential for intellectual property infringement or the need to protect intellectual property. Sustainable building is still in its infancy and new techniques and methods to achieve LEED credits are being still being developed. The owner, general contractor, and architect must be aware of the potential for intellectual property infringement by utilizing techniques pioneered by others as well as aware of the need to protect innovative strategies or methods that might be developed during the construction of their building. Clients need to be advised of the importance of contractually defining who is responsible for infringements of other’s rights as well as who will own the intellectual property rights to any techniques developed during this project. Sustainable buildings have both short term performance goals, such as obtaining certification as well as longer term performance goals such as reduced energy use or the use of energy from renewable resources. The performance goals of a sustainable building must be discussed with the client and if necessary contracts must be drafted to ensure these long term performance goals are met by tenants and other parties. It is important that the client realizes that in constructing a green building, obtaining LEED certification is just one small step and that without the proper education and operation guidelines and contracts in place the true energy savings will not be achieved. The owner must also consider whether traditional insurance will be adequate to compensate them and permit them to rebuild to LEED standards in the case of a loss, or whether they should obtain an insurance policy which specifically addresses the sustainable nature of the building and provides adequate funds to rebuild a LEED building in the event of a loss.
If you are involved in the design or construction of a green building there are a plethora of legal issues which you should be considering. The best known issue is how to define who is responsible for achieving certification if the building is pursuing LEED certification. Traditional contract documents such as the AIA forms do not adequately address the nuances of green design and construction, a problem which was partially brought to light in the Shaw case as discussed by Stephen Del Percio. It is important that as a designer or contractor you seek legal counsel regarding the potential litigation that can arise if a building does not achieve certification. As Chris Cheatham has explained at GBLU there are currently no available mechanisms to ensure certification. In addition to the issue of certification the following issues should also be addressed:
- Does the design professional have adequate insurance coverage considering the green nature of the project?
- Will product warranties and guarantees be voided by green construction procedures or installation methods?
- How will long term performance goals be delegated amongst future building occupants?
- Are there intellectual property infringements from copying installation methods or designs from other green buildings?
- What is the availability of green building materials and their cost of replacement? Will a traditional insurance product cover the rebuilding to green standards if a loss occurs?
Great River Enegy recently released a white paper detailing the construction of their Maple Grove, Minn. headquarters, the first building to achieve LEED Platinum in the state. The text of the white paper can be found here.Great River Energy not only built a sophisticated building which scored 56 points but also built a structure which can be used to educate others.
The key features of the Great River headquarters are:
- Uses 50% less energy and 90% less water than a structure built to just state codes
- Utilizes an in lake geothermal HVAC system
- In floor displacement ventilation system
- Daylight harvesting
- 72 kilowatts of on site solar power and a 200 kilowatt wind turbine
- Only cost 10% more than a traditionally built structure
The Great River Energy headquarters is an excellent example of how proper research, communication between all team members, and follow up evaluation and corrective action can create a building that is not only sustainable and efficient but also an excellent educational tool to spread the message that green building does not need to break the bank.
We need to rethink the way we evaluate buildings and energy usage for as the CEO of Green River Energy said: “At Great River Energy, we know the cheapest—and cleanest—kilowatt-hour is the one we don’t have to produce. So conservation and energy efficiency have become our first
fuel.”
The debate has been settled, green building will play a major part of the future of the building industry. However, as green building is still in its infancy it faces an identity crisis. What does it mean to be green? (and no I am not talking about being sea sick!) Is a Green building defined only as a building certified by LEED or can other certification systems be used? Can a building obtain the same energy efficiency, decreases in environmental impact, and sustainability as a certified building but forgo certification to save money and still be green? I believe that from a legal standpoint this “identity crisis” will be the source of a great deal of litigation. I would love to hear what you think.
Link to original article can be found here.
Yesterday a co-worker and I had the pleasure of attending a USGBC sponsored workshop covering LEED Core Concepts and Strategies. I use the word pleasure sincerely, as the full-day event was well-executed, informative and well worth the cost.
Before attending the event, I searched online for reviews of the LEED workshops, wondering if they were worth the course and travel costs. As someone who isn’t an architect, engineer, designer, builder or contractor, I was unsure of how I would fit in or benefit from the classroom sessions.
I didn’t find much help online, so here’s some highlights and my thoughts on if you should attend similar workshops.
- There was only one architect in our workshop, the rest were mostly engineers and contractors. Is this because architect’s have already jumped on board the LEED AP wagon or are they beyond this workshop’s knowledge base? Is LEED now filtering down to the other members of the design/build process?
- The most informative aspect of the workshop was not the content presented (I was familiar with most of it), but instead the questions and comments of my classmates. The workshops was led by Paula Vaughan, co-director of the Sustainable Design Initiative, who did a great job encouraging participation and individual feedback based on everyone’s unique backgrounds.
- Can’t say enough about Hubbell Lighting, who hosted the event at their LEED Silver Certified building. The company is as green as it gets, to the extent of buying carbon credits to offset the emissions of shipping partners such as UPS. A few of Hubbell’s employees also sat in on the session and offered insightful advice on lighting’s role in LEED certification.
So, should you participate in a LEED workshop? I think so. If nothing else, you hear opinions and views from others in your industry that you may not normally be exposed to. Architects can learn from builders and vice a versa. I certainly learned from everyone.
I was pleased to be apart of the event, and want to thank the USGBC and Hubbell Lighting for putting on a well-executed workshop. If anyone has any questions about the workshop I attended, please feel free to leave a comment and I’d be happy to help.
In 2008 Maryland passed the High Performance Building Act which established green building requirements and chose to use LEED as the only certification option. Under LEED wood used in a building must be certified by the Forest Stewardship Council (FSC). FSC imposes stringent requirements on forests and requires annual audits as well as the requirement that all wood be able to be tracked from the time it is cut until the time it is incorporated into a building. Contrary to the traditional agricultural saying “What is grown locally and sold locally is considered to be green” buildings constructed in Maryland are essentially prohibited from using wood harvested in the state as only 50,000 acres of forest is FSC certified.
Last week, Senate Bill 243 was introduced by Sen. Janet Greenip, R-Dist. 33, that amends the High Performance Buildings Act to include the Green Globes Program as an alternate rating system. Green Globes accepts wood certified by the American Tree Farm System (ATFS) and the Sustainable Forestry Initiative (SFI), the two main certifiers in Maryland, covering more than 200,000 acres in the state.
The situation in Maryland raises the question: Is LEED too stringent and unresponsive to local needs? While sustainable forrestry is surely imporant is LEED’s insistence on certification by FSC and FSC alone too burdensome?
While much of the emphasis on green building centers around talk of LEED certification, the best known and most widely accepted certification system, 2009 has introduced several new regulations and codes which are worthy of discussion.
The first of these is the ASHRAE Standard 189. Some of you might remember that ASHRAE attempted to develop their green building standard last year but abandoned their attempt after complaints from several industry groups that their interests were not properly represented. Section 189 is titled “Standard for the Design of High-Performance Green Buildings Except Low-Rise Residential Buildings”. On January 27, 2009 the committee was expanded to include 34 voting members and seeks to implement a code which will outline minimum criteria for green building practices, the standard will be applicable to new commercial buildings and major renovation projects. When completed, it will address energy efficiency, a building’s impact on the atmosphere, sustainable sites, water use efficiency, materials and resources, and indoor environmental quality, among other high-performance green building issues.
On January 29, 2009 ICC- 700 was approved as the American National Standard. The new Standard provides guidance for safe and sustainable building practices for residential construction, including both new and renovated single-family to high-rise residential buildings. This is the first and only green standard that is consistent and coordinated with the Code Council’s family of I-Codes and standards. Board President Adolf Zubia said, “this is an enormous step forward in bringing focus to green practices for the built environment. ICC-700 provides a benchmark for green building in the residential market, serving as a new and needed starting point for comprehensive approaches to green residential construction. This is the result of many months of hard work by our members and our partners around the country.”
The standard’s rating system allows builders, designers and communities to choose the levels of high-performance green buildings that best suit their needs. Key provisions include:
- Land conservation
- Rainwater collection
- Construction of smaller homes to conserve resources
- Energy performance starting at 15% above the baseline requirements of the 2006 International Energy Conservation Code
- The use of low VOC (Volatile Organic Compound) materials and detached garages or carports to improve indoor environmental quality
- Homeowner education on proper maintenance and operation to maintain its green status throughout its life cycle
ICC-700 is available at the following website.
Stay tuned for more news regarding these codes and how they will be implemented in green construction projects around the country. It is important to note the increased flexibility that ICC-700 offers over LEED to those construction residential houses.
The battle to see who will win the day has yet to be decided, but as Chris Cheatham, and Elaine have suggested ultimately the influence of any certification system or regulation will be impacted by the creation of regional standards.