Green Building & Environmental Trends : Green Building & Construction LEED AP Consulting : Rich Cartlidge : Environmental Trends, Urban Development

This past week I sat for the Florida Bar Exam and during the last several days of decompressing I came to realize that the bar exam and green building have something in common! For the last month I have done thousands of practice questions, read numerous essay questions and attempted to learn how to spot the issues and identify the nuances between answer choices. I have also gone back and remembered funny moments and valuable lessons from the last three years and will now share with you why I believe the bar exam and green building have something in common.

1. Being a green building attorney is like studying for the bar exam because right now all that can be done is practicing analyzing problems and evaluating the potential issues. Like an anxious student waiting for his bar exam results everyone has their eyes open for reported cases of green litigation.
2. Perhaps there is no litigation because the attorneys representing those involved in the green building trade had a professor similar to my favorite Professor J.J. Brown who once said "If your client ends up in court you have already failed them" As has been discussed in great detail much of the green building litigation can be avoided through proper contracting.
3. Like a group of students studying for the bar exam the green building community is extraordinarily close. None of us know everything but we all hope that through practice we know enough to spot the issues and do well when the test/litigation first arrive.

Now that the bar exam is behind me I will be back to writing and job  searching and look forward to the engaging and educational conversations I have come to enjoy with my readers.

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One of the biggest criticisms of the LEED certification system is that LEED certified buildings do not live up to their performance expectations. While there has yet to be widespread litigation arising from the gap between expected performance and actual performance a recent change to LEED may soon give rise to both increased litigation as well as better performing buildings. Under LEED versions 1.0 and 2.0 buildings were not required to report energy and water usage. The lack of a reporting requirement was a fact that many building owners who had made promises or implied promises of decreased energy usage to lure tenants and allow them to charge higher rents were likely grateful for considering that many LEED certified buildings were not performing up to their promised levels. Even the best designed building is capable of performing poorly if the owner and management do not properly educate the occupants about the energy saving devices used in its construction. A common example is occupant sensing lighting controls turning off lights when occupants sat still for a prolonged period of time, leading individuals to override the sensors and cause lights to remain on long after occupants had left the room and in numerous cases 24 hours per day. LEED version 3.0 seeks to address this gap between expectations and performance by requiring annual energy and water usage reporting or re-certification every two years. Stephen Del Percio at Green Real Estate Law did a good job of explaining the new system and its potential implications.

The energy reporting obligations imposed under the new system will very beneficial to companies which manufacture systems to facilitate energy usage monitoring. However, the biggest benefit will be to the future owners, operators, and users of such buildings who will now know if their building is performing to its promised standards. Whether this new requirement leads to an increase in litigation or not remains to be seen but it surely is a step in the right direction to establishing the credibility of the LEED system and will help to close the gap between building design and building operation.

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Chris is a lawyer at the Richmond, VA firm, DurretteBradshaw, PLC, and is a member of Virginia's Legal Elite in Construction Law. Chris specializes in mechanic's liens, contract review and consulting, occupational safety issues (VOSH and OSHA), and risk management for construction professionals.

First, I need to say thank you to Rich for the great invitation to post here at GBET. Rich was kind enough to guest post at my Construction Law Musings blog and I am thrilled to return the favor.

As I study for the LEED AP exam and look at the issues surrounding the new construction landscape and “LEEDigation” (thanks to my friend Chris Cheatham for this term. I wish I’d thought of it). I feel the need to expand the discussion beyond what I believe has become too narrow a focus on “green” issues in building and law.

While the issues of the effects of third party verification, bonding, insurance, environmental issues, and contract drafting have rightfully focused on this growing economic and environmental trend, I do not think that we can drop our focus on more basic risk management issues. 

Without a broader view of the inherent legal and insurance risks in any construction project (large or small), the basics may get lost. Regardless of the unique issues relating to a project that seeks to meet a certain “green” benchmark (whether LEED, Green Globes or otherwise), contractors still need to be aware of the underlying legal risks and focus their efforts and contracts accordingly. 

The brave new world of sustainable building only adds an additional layer to the risk management techniques that are as old as construction itself. A contractor still needs liability insurance, still needs to make sure that payment flows well, still needs to be ready to file a mechanic’s lien or Miller Act claim if necessary, and still needs to make sure the scope of work is very well defined in a contract. 

Consulting with an attorney that is well versed in practical, on the ground, risk management from a general perspective will get a contractor 90% of the way toward the goal of sound business and contractual practice. Once this layer is established, a contractor will have a great base on which to “sustainably” build its “green” construction practice.

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