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Archive for the ‘Green Building’ Category

     By Gary L. Cole AIA, Esq.

     LawArk’s March 14, 2010 article by Gary L. Cole AIA, Esq., “The New ConsensusDOCS 310 Green Building Addendum:  Avoiding Green Building Liability With Actions Over Words” has been republished by ConsensusDOCS at http://consensusdocs.org/news/

     ConsensusDOCS publishes industry-standard construction agreements endorsed by twenty-three leading construction industry trade organizations.  Further news and information about ConsensusDOCS can be found on their website at http://consensusdocs.org/.

     By Gary L. Cole AIA, Esq.

     Author and friend Sheri Koones’ latest book “Prefabulous and Sustainable,” with a forward by Robert Redford and published by Abrams is now available.

     From Amazon’s summary:

     “Prefabulous and Sustainable dispels the negative myths associated with prefab homes and shows the reader how beautiful and remarkably green prefab homes are.

     In this guide to prefab home-building author Sheri Koones, demystifies the prefabricated house by using 25 unique homes to showcase how factory-built homes are greener, more efficient, sturdier, and more cost-effective than site-built homes. The book is divided into 3 categories—green, greener, greenest—and the homes featured vary in style, design, type of construction, and size. All of the homes included in Prefabulous and Sustainable have been customized to create a level of sustainability beyond the inherent qualities of prefab.

     Written in an easy to understand and approachable style, author Sheri Koones walks the readers through each of the homes, explaining the materials, strategies, and systems used to create a sustainable living environment. Photographs, captions, floor plans, and sidebars illustrate to readers that green living is not as complicated as one might think, and attainable for everyone. Also included is a resource guide, making this book a hands-on guide for homebuilders.

     Sheri Koones is a widely respected author who helps readers understand that getting the house of their dreams can be done in an ecologically responsible way. Her book, Prefabulous, explored the variety, beauty and eco-friendly benefits of prefab homes and recently won the prestigious Gold Award in the 2008 Robert Bruss Real Estate Book Awards from NAREE. Sheri is a member of the National Association of Real Estate Editors, the Sustainable Building Industry Council, and the American Society of Journalists and Authors. Sheri is also a columnist for Home Resource Guide and a freelance writer and speaker. She lives in Connecticut.”

     Sheri’s other books on sustainable and modular design and construction can also be found on Amazon and other booksellers.

      By Gary L. Cole AIA, Esq.

     ConsensusDOCS, the construction industry’s leading standardized construction contracts and general analogue to the American Institute of Architect’s Contract Documents, recently unveiled a new contract addendum for “green building” projects – the “ConsensusDocs 310 Green Building Addendum.”  The two most interesting things about the new document are:  (1) that it exists at all; and, (2) that ConsensusDOCS has very cleverly taken steps to shield its member-users from what, to some, is the Achilles Heel of the entire green building movement:  that in any useful design, construction or legal sense, the term “green” has no reliably consistent meaning at all.  That the new ConsensusDocs 310 Green Building Addendum achieves its goals by contractually defining a project’s greenness through actions instead of words is perhaps its most admirable achievement.

     “Green Building” – “Green Living” – “We’ve gone Green!”  In any real design, construction or legal sense, exactly what does “green” mean?  And what does “green building” mean?  Ask a hundred people at the next green building conference you attend to define “green building” and I promise that the answers will range somewhere between “energy and resource-efficient humanistic  design and construction” to “a sacred calling to protect Gaia from rapacious bottom-dwelling Industrial-Capitalists.” 

     Don’t get me wrong – it’s not as if green building advocates don’t attempt to define “green” or “green building” – they do, with varying degrees of success.  And I’m not suggesting that a perfect combination of words and sentences that would satisfy everyone’s requirements ever could, or even should exist.  Flexibility can be a good thing and sometimes just stating a set of principles that are intended to achieve substance through actions is enough.  Sort of like the Ten Commandments, or the slightly lesser – to some – Secretary of the Interior’s Standards for Rehabilitation – it’s what you do with them that counts.

     Which is great when you’re preaching to the already-converted, but not so great when trying to convince everyone else, like say, a court of law, where skepticism and burdens of proof tend to run a little higher.  Sure, thanks to aggressive marketing, the term “green” has evolved enough general meaning in the public mind to be used on bumper stickers and t-shirts with reasonable definiteness – if by “definite” we mean “less vague.”  But for legal contracts involving the transfer of massive amounts construction-related capital, and all the legal liabilities that attach like barnacles to everyone involved – a slightly higher standard of clarity is probably in order.  

     Enter the new ConsensusDocs 310 Green Building Addendum, which doesn’t even attempt to define uncertain terms like “green” or “green building” with mere words – it does so through the actions of a project’s parties.  And as much as lawyers like words, when constructing contractual bulwarks for our clients, we like actions a lot too.  The new ConsensusDOCS addendum allocates the responsibility for defining what “green,” and therefore what “green building” means on any given project to the parties who should be responsible for defining it – the owner, its architect/engineering team and a third party referred to as the “Green Building Facilitator” (the “GBF” – who may, or may not be the contractor or construction manager).  After all, unless a contractor is part of a design/build team and/or intends to assume the role of the GBF, then absent shoddy construction, why should it be dragged under when green turns to brown and the finger pointing starts?   Its job is to build, not design.  And it’s certainly not to save Gaia.

     ConsensusDOCS was kind enough to provide me with a copy of the new addendum to review.  There are no less than ten (10) defined terms that use the word “green” – which at first made me wonder why they didn’t just define “green” for any particular project in the usual way, such as: “ . . . For purposes of this Addendum, the term “green” shall mean and refer to, etc., etc . . . .”  But a little closer look made that clear.  The 310 Green Building Addendum’s real purpose is to identify the roles of relevant parties and to define the methodology they’ll use to plan and implement a project’s sustainability goals.  It also serves to clarify that unless a contractor has specifically accepted the role of Green Building Facilitator, their job is to build – planet saving’s outside their scope of work – and an extra.

     Here’s a snapshot of how the ConsensusDOCS 310 Green Building Addendum goes about that:

     First, the GBF, working with the architect/engineering team, advises the owner on alternatives for achieving a project’s desired “Green Status” – such as a LEED designation goal;

     Second, how a project achieves its Green Status is defined by its “Elected Green Measures” (comprised of the “Elected Physical Green Measures” + “Elected Procedural Green Measures”) which arises from reports and discussions between the owner, its A/E team and the GBF; and

     Third, the details of the first two steps are incorporated with specificity into a project’s plans and specifications – again, not something for which a contractor is usually responsible.

     Of course, the above simplifies a fairly complex procedure, but unless a contractor wants to step into the center of the green action – such as becoming the Green Building Facilitator, or if the project is design-build – by using the ConsensusDOCS 310 Green Building Addendum, it may avoid being directly in the green legal liability line of fire by requiring a project’s greenness to be defined by the decisions, work product and actions of other parties.  And if that weren’t clear enough, the addendum wraps it all up with an entire final section on risk allocation.

     So, when a green roof leaks, or an HVAC system underperforms, or a project’s new, imported and unvetted “sustainable” materials off-gas toxic chemicals killing every parakeet within a square mile, or a project doesn’t achieve its LEED designation and the owner doesn’t obtain its proforma-required tax benefits and starts looking around for someone to blame – the contractor has something of a defense. 

     Will it provide absolute protection when the plaintiff’s attorney lets loose with both barrels of 12 gauge, no. 10 buckshot and names everyone who ever glanced at a project in a lawsuit?  Probably not – but the 310 Green Building Addendum, along with the many other documents produced during discovery that support it by substantiating the relative roles of a project’s parties, might make for a very nice place to start crafting a defense.

     The ConsensusDOCS 310 Green Building Addendum is an admirable end-run around the green building movement’s obvious shortcomings – defining what “green” really means.  But perhaps it’s time for green building advocates to convene their own Council of Nicaea and hammer out the canons and doctrinal orthodoxy of green building – take it to the next level – the one that recognizes the inherent legal dangers of vagueness.  It won’t be pretty or easy.  Or, here’s a thought – ditch the marketing slogans and just start calling green building what it is – maybe:  “energy and resource-efficient humanistic design and construction.”   Or something like that.

     Sure, it’s not as snappy as “green” and might not fit as well on a Prius’s bumper  – but what more do you really need to say?  Green Building has enjoyed a good run of public support over the past decade, but anyone with their ear to the ground lately has heard the approaching hoof beats of the inevitable pushback.  The time may be fast approaching when words and actions – not to mention results – must merge into one for green building to sustain its credibility as a valid design and building ethic.   

     Is it possible that’s what ConsensusDOCS recognized when it created its new 310 Green Building Addendum?

Gary L. Cole AIA, Esq. is a Chicago-based Illinois and Florida-licensed attorney and an Illinois-licensed architect with over twenty years experience in design and construction, real estate development, historic preservation and accessibility matters.  He’s worked for two of Chicago’s largest law firms - Winston & Strawn LLP and Seyfarth Shaw LLP,  and was in-house counsel for one of the largest retail developers in the southeast – The Sembler Company.  He earned his law degree at Loyola University Chicago and holds both Bachelor of Architecture and Master of Architecture degrees from the University of Illinois, where he was a Visiting Associate Professor of Architecture for over a decade.  Mr. Cole regularly publishes timely articles about design, construction and real estate development issues on his website “LawArk” at www.lawarkbuilding.com, and can be contacted by email at garycole@lawarkbuilding.com.

By Gary L. Cole AIA, Esq.

      [Disclaimer:  Nothing in the following article should be construed as legal or accounting advice, nor endorsements of any parties referenced within – the contents are entirely the opinion of the author.  Parties interested in learning more should always consult their tax, legal and other professionals for specific advice and information.]  

      Architects, engineers, contractors and other designers of energy-efficient public projects may be eligible for substantial tax benefits under the Energy Policy Act of 2005 – though it appears than many are unaware of this opportunity to effectively increase their project compensation.

     Under Section 179D of the Internal Revenue Code (the “IRC”) – created as a part of the Energy Policy Act of 2005 – owners of energy-efficient commercial buildings, which generally includes federal, state and local properties, may take a tax deduction of up to $1.80/SF square foot of qualifying construction.  The $1.80/SF maximum deduction is allocated at $.60/SF for each of the three following improvements: (1) the interior lighting system; (2) the heating, cooling, ventilating, and hot waters systems; and, (3) the building envelope.

     While that’s great for owners of income-producing commercial properties – how does it help architects, engineers, contractors and other designers increase their compensation on such projects? Read the rest of this entry »

The American Association of Insurance Services recently published “Assessing the Impact of Green Construction on Commercial General Liability Exposures,” by Joseph Harrington, which follows two prior articles dealing with the impact of sustainable building practices on property insurance and builders risk coverage. 

The current article contains links to the earlier green insurance-related articles as well as quotes from LawArk’s author, Gary L. Cole AIA, Esq.

By Gary L. Cole AIA, Esq.

          Online virtual worlds, also called metaverses, have been around for some time now, all the while growing in complexity and sophistication, first in gaming and then as online 3D social networking sites.  But the majority of these are fantasy worlds – like the well-known role-playing game World of Warcraft  for sword-swinging gamers, and Second Life  (SL) – a metaverse where social interaction between avatars, not troll bashing, is the primary objective.  

          Freed of annoyances like structural engineering and material specifications, building and zoning codes, weather and oh, yes – gravity – anyone willing to shell out a few Second Life Lindens (SL’s virtual currency), can purchase virtual real estate on Second Life and build a house, a commercial building, a Harvard lecture hall, a floating museum – just about anything.  And businesses are taking note as quite a few corporations and educational institutions have opened virtual operations in Second Life and extended their marketing to the virtual world.

          But as imaginative constructs, fantasy virtual worlds will probably be limited to pretty much what they are now – fun, a little business and education maybe, but mostly a pleasant distraction.  Not that there’s anything wrong with that. 

          Enter now the mirror world – a virtual replication of an actual world – not a fantasy world.  While Second Life members have reproduced certain real world buildings within its servers, mirror worlds take it even further and replicate actual cities.  And these cities are populated with avatars – 3D virtual representations of their users (or who their users want to be) who walk, talk and fly about with other avatars, any one of whom might be a real person sitting at their keyboard on the other side of the world, or your neighbor next door.

          One of the best of these mirror worlds is Berlin-based Metaversum GmbH’s Twinity which currently features mirror versions of Singapore, London and Berlin – with more cities in the works.  After creating an account and downloading their software, Twinity members can beam their avatars to just outside Berlin’s Brandenburg Gate as it looks today – or, back to 1989 as it looked before the fall of the Berlin Wall.  Or teleport to London and stroll around Piccadilly Circus or Trafalgar Square (no virtual pigeons that I could see).  The visuals are very good and the sense of place real within the limitations of today’s computer technology – and we all know how long that stands still.   Read the rest of this entry »

[NOTE]: The voice employed in Law/Ark posts is intentionally non-legal. Herein, you will find no wherefores. And, while I welcome and warmly appreciate the readership and comments of my fellow attorneys, these posts are written mostly with Law/Ark’s other readers in mind – those of you out there responding to your passions and answering your callings by designing, building and developing green projects.

And, despite the sometimes playfully polemical tenor of these posts, they’re not intended to discourage you from that pursuit, but, rather, to encourage you to pursue them with the proper forewarning and forearming.

Part 2.1 (Part 1 was posted May 18, 2009)

This is Part 2.1 of the “Green Goblin” Series, of which Parts 2.2 and 2.3 will follow shortly. The series will wind it all up with Part 3, which will address specific legal and design/construction practice approaches for avoiding the pitfalls discussed in the series.

The Green Goblin series can be summarized in one statement: “unsupportable claims about the performance of “green” design and construction may inspire a new understanding of the American legal system by those who make such claims – as defendants.”

 Part 1 of this series touched on something I called “unfulfilled expectations” in green design and construction – essentially, what was expected did not occur, and/or what occurred was unexpected. Unfulfilled expectations is a simplified way of referring to some manifestation of a “breach of contract.” Breaches of contract can arise by violations of express terms – as in writings, or, even by implied terms. Either way, someone’s not happy with an outcome – in this context, most likely a client who believes they were deliberately mislead by the representations of their design and construction professionals about the performance and/or value of their new green project.

But wait! – some readers are thinking indignantly – I would never misrepresent a design! And, as an architect, I agree, you would probably never do that intentionally. Architects and other designers are many things, but charlatans only very rarely – it’s just not in their DNA. But, as this series of posts explores, green design and construction is particularly vulnerable to claim-making on a whole new level –a global level. And, as an attorney, I also know that when the finger pointing starts, what was done intentionally or unintentionally can sometimes matter only slightly under the hairy eyeball of the law. Or, it’s the crux of everything, depending on the facts. But what is deeply encoded in the double helix of most architects and other designers is a yearning to create something wonderful – a longing to make something from nothing and delight the world. And therein lurks the slumbering danger for green design and construction professionals – the desire to please an authority higher than the client and the project’s program – which higher authority may, or may not exist.

It starts in school. Design schools have their shortcomings – most notably in business education – but failing to imbue their acolytes with a sense of unbridled idealism and religious certainty and then cursing them with cynicism isn’t generally among them. That comes later – when rosy idealism runs headlong into the hard, sharp corners of business reality. And when that happens, designers have a choice: retreat into the warm and cathartic refuge of imagination (and blissfully ignore the risk), or, accept that the design profession is like many things – pleasant enough if done right, but always subject to the tedious business of balancing idealism and risk. And, at least as far as construction law is generally concerned – also subject to the requirements of the client and the project first, and other callings second, if at all.

And this is the dilemma for some green design and construction professionals – the ones who are most vulnerable to legal liability – how to achieve a balance between serving the client and the project, while still serving a higher, even global calling?

The problem is in the creative process itself – a way of thinking utterly alien to most in the legal profession – but key to understanding both the problem and its solution.

By necessity, design is often conceived in the haze of the half-waking dream – the fertile ground between mythology and science where nearly anything is possible and the realities of engineering, building codes and especially the law, stand pale and ghostlike in the background, patiently waiting to be acknowledged. By virtue of their academic and professional training, those who enter the design professions have been culled from the many applicants who found this Phantom Zone a bit too, well – ephemeral, for their way of thinking. In over-simplified terms, conceptual building design is a right brain activity, with just enough of the left brain kicking in to make sure that designs can be built, stand up and preferably not kill anyone along the way. All of this, of course, ignores the long-simmering civil war within the design professions – especially in architecture – between the pure designer and the others – those who have sought peace between their warring cranial hemispheres and achieved a sort of balance and détente between the rational and romantic synaptic impulses crackling away in their melons like a tree full of blackbirds. Or, less metaphorically, the conflict between those who regard architecture as merely a poetic thought exercise that sometimes results in buildings, and those who see architecture as a building art necessarily expressed by, you know – real buildings. For purposes of green design and construction legal liability, it’s the former who are most at risk, but in the current state of the green building industry, even the latter need to navigate with caution.

At the same time, speeding along in their different, but often intersecting orbits, and generally unconcerned with romantic sentiments, design theories and ideology – are the lawyers. Much-maligned and often underappreciated, they suffer from a long history of popular distain as evidenced in movies and books populated by two-dimensional stereotypes that only someone who’d never set foot in a court room or who’d maybe spent their first year out of law school as a litigation whipping boy at some hard-charging mega-firm – before fleeing to a less stressful career hauling crab pots in the Bering Sea – would think bore any resemblance to real lawyers and the real practice of law. But, for this series’ purpose, lawyers are just like other people and hardly any fit any of the popular stereotypes – except, of course, in one very important way.

By necessity, the law requires a full-on, highly caffeinated, linear way of thinking by individuals who, from cradle (or law school anyway) to grave are culled from society’s broader and less focused thinkers, and trained to apply their powers of unemotive logical reasoning with the precision of an excimer laser and a rigor that could bring a tear to even Mr. Spock’s stoic eyes. The beautifully creative and impressionistic notions of designers are as incomprehensible to most lawyers’ fast-firing, sixteen-cylinder minds as a description of the aurora borealis would be to someone unsighted from birth. And when, as discussed in Part 1 of this series, that green roof turns from a much-lauded butterfly refuge to a sopping mess in the offices below, any green design or construction professional whose defense is proudly based on idealistic and heroic notions of saving the planet instead of tedious due diligence and observance of a standard of care, may abruptly find themselves in a new line of work. Measuring the Cheshire Cat grin of the plaintiff’s attorney who hears that defense in a deposition or at trial would be done in feet, not inches – as beautiful in its expression of victory as the defense counsel’s involuntary gagging is sudden and violent.

This then, is the essential conflict that can lead to career-ending legal liability: unfulfilled expectations which arise because green design and construction professionals, in their desire to imbue their work with more then mere programmatic compliance, choose – unwisely – to advocate questionable solutions to uncertain problems in a quest for the salvation of the planet – all of which runs headlong into the snapping jaws of a legal system which is generally unimpressed with messianic notions and world-saving idealism, and more concerned with whether proper professional duties and standards of care were observed. In this way, the popular stereotypes of lawyers and the legal profession are not the amusing stuff of popular entertainment – but of a reality that green design and construction professionals either willingly appreciate at the beginning of their projects – or may unwillingly at the end.

[END PART 2.1, PART 2.2 TO FOLLOW SOON]

NEXT: For green design and construction professionals – and green building advocates in general – the following parts of this series may sting a little. But fully addressing the root causes of emerging green legal liability isn’t done through a typical, dry legal discussion about traditional causes of action and contract defenses. It’s done by understanding – really understanding – the reasons why green design and construction professionals passionately (though, perhaps unwittingly) risk their practices to advocate a theory of design and building that relies as much on a currently legally indefensible ideology of global salvation as it does on traditional notions of high-efficiency building design.

But is green design and construction really based just on ideology, theology or even superstition as some have claimed? Or, is energy efficient and human-centered design just the most sensible way for a technologically advanced civilization to design buildings and cities in the 21st century? Have humanistic values finally returned to our way of thinking, living and designing our communities? Do traditional legal causes and effects even apply here or are we into new territory that will require attorneys to reach deep into their right brains and create new defenses to address a new way of designing and building, rather than simply relying on traditional, possibly outdated and even ineffective approaches developed for a different design/construction/law paradigm? Is it time for everyone to bring their A-game to develop a whole new way of thinking about how our values are reflected in the way we design and build and the law’s response to those changes?

Maybe – or not. Maybe green design and construction is just the same old – with a new paint job to match a new vernacular.

But the answers to these questions will not be found by cringing behind delicately minced words and the occasional grand jeté between half-truths – but will be found tackling the issues head on with an unapologetic and sometimes polemical directness that brings the matter into full light for a much-needed objective rational discussion. Even so, it’s likely, as is often said in the law, that reasonable people may disagree – and probably will.

© Copyright Gary L. Cole AIA, Esq. 2009

Law/Ark appreciates the inquiries about Part 2 of the Green Goblin series and humbly apologizes for the unintended delay. Thanks for your patience.

Also, Law/Ark will soon be undergoing significant upgrading and expansion – including web hosting – to address other areas of the law concerning architects and other designers, engineers, contractors, commercial and residential real estate developers, historic preservation (advocates and critics), accessibility (advocates and critics), and, of course – green building and alternative energy (advocates and critics).

Upcoming Series – Architects in Real Estate Development – New Practice Opportunities

Architects especially (and others generally), may find an upcoming Law/Ark series of interest: Architects in Real Estate Development – New Practice Opportunities

Part 1 will discuss how architects (and other construction professionals), can stop waiting for the phone to ring, tap into the right resources, find potential development projects on their own, and prepare the proper feasibility/market studies to select the right developer to partner with and become part of the deal and not just a facilitator of the project.

Part 2 takes it the rest of the way – including how architects form the right legal entities, navigate property acquisition issues, find investors and financing, deal with political and anti-development issues all for greater control over deals and to see their visions completed and greater financial gains realized. Architects can become developers – and even contractors.

The series is intended as a primer for a much more detailed two-day, continuation education-accredited, soup-to-nuts seminar that will leave attendees sweaty, drained, and panting from brain fatigue – but mostly – with the confidence – to take their careers in new directions. No fluff involved and plenty of caffeine will be provided. And, attendees will have follow-up access to online resources and industries that will help them continue their journey to greater self-sufficiency and career satisfaction.

Yes, architects, you can do it. You already have much of the knowledge – you just need the rest delivered in a language you already speak.

The articles and the seminar are being prepared now and Law/Ark reader content comments are always welcome – this is for you and your practice – the time is ripe for change!

© Copyright Gary L. Cole AIA, Esq. 2009

[DISCLAIMER: The following discussion is intended for general informational purposes only and is expressly not offered as legal or architectural advice, nor does it constitute advertising or a solicitation of any kind. And most of all – readers should always seek legal advice about their specific situations only from their attorneys, and architectural advice only from their architects.]

“Green” design and construction legal liability. It was, of course, inevitable that the legal profession would turn its curious eye in that direction – there’s just too much splashing in the water to ignore it. But before panic sets in, the news may not be all that bad, because in the fast-evolving world of “green” and “sustainable” design and construction, Ben Franklin had it right – an ounce of prevention truly is worth a pound of cure.

First the good news: by large, the legal profession hasn’t yet embraced the litigation potential of green design and construction the way it has, say, work-related injuries, deadly prescription drug side effects, or tobacco-related lung cancer – though a caveat to that statement will be discussed later in this post. It’s unlikely that you’ll soon see 2:00 a.m. commercials asking if you or a loved one have been injured or killed by poor site design or the loose prop of a wind turbine.

The bad news is that attorneys, especially those already practicing in construction law, will soon realize that aside from green design and construction’s sometimes specialized and occasionally ill-defined vernacular, there’s no real novelty in the types of claims that might arise. No new frontiers of jurisprudence need be explored – a leaky green roof is still a leaky roof – whether it also requires regular mowing and landscape maintenance changes little from a legal perspective. Green design and construction is novel only in that, unlike traditional design and construction, it serves an environmental urgency beyond a basic programmatic utility. Roofs used to just keep buildings dry, now they cool cities and save polar bears, but they can still leak, and this is familiar territory to construction attorneys, regardless of a roof’s other design intent. But the good news is that the defensive tactics for emerging green design and construction claims are also well-established, though as yet not well vetted in this context.

The purpose of this Law/Ark discussion, which will be presented in several short installments, is to highlight the missteps that design professionals and contractors may make along the green path of good intentions which increase their exposure to later claims of liability when things go wrong – as they often do in construction. It will then look at ways that risk may be mitigated in advance and hopefully prevent green design professionals and contractors from becoming the poster children for precedent-setting lawsuits that could have a chilling effect on public acceptance of sustainable design and construction. There’s always a tipping point where the risk of something new outweighs its potential benefits, and markets are remarkably efficient in sensing when that point has been reached, and the shark, as they say, has been jumped.

And, while still maintaining Law/Ark’s objectivity on the issue, these post installments will also discuss how, contrary to their often unflattering TV and movie portrayals, when it comes to the new world of green design and construction, informed attorneys may be best at doling out Mr. Franklin’s well-known prevention dosage.

Part 1 – What Is Green Design and Construction Legal Liability?

In non-legal terms, most legal liability associated with green design and construction will arise from one issue – though it’s an issue with many faces – unfulfilled expectations. The legal vernacular for expressing this would be something along the lines of: “breach of contract through failure to perform according to express and implied representations and warranties.” But these claims have been made in construction conflicts forever – even the ancient Romans had laws on point. “Green” or not, the problem arises when connected parties in a development’s long chain of events – be it a manufacturer/vendor to an architect/contractor; or an architect/contractor to an owner/developer, represented that taking certain actions would result in certain outcomes – which outcomes did not occur as represented.

Again, there’s nothing novel about these type of design and construction-related disputes and most claims – but not all – boil down to some manifestation of this issue. With respect to any fellow attorneys reading this post, yes, I’m simplifying matters and there are many other types of claims that can arise in construction disputes – so stipulated. But in the case of green design and construction, the many manifestations of claims related to unfulfilled expectations will likely lead the pack if/when this type of litigation gains traction.

Regardless of the prosaic core nature of the claims themselves, getting to that core currently requires navigating a unique combination of broad environmental goals wrapped in the often vague and generalized movement terminology. The reduction of energy usage and carbon footprints to combat global climate change, while certainly worthy macro goals, does not exactly translate well at the micro level that’s required to prepare protective contracts which provide clear, realistic and defensible representations and warranties.

What exactly is “green” design and construction and how can its larger goals be accomplished without giving an old class of legal claims a green paint job and thereby discouraging markets from accepting the challenges of those goals?

Naming the Thing

To start with, a great deal has been written about the need to define “green” and “sustainable” in precise, fully-accepted ways that can be translated into clear contract language. I agree and disagree in part.

I agree that without greater precision in the vernacular of green design and construction, unfulfilled expectations are a certainty. Just naming something doesn’t make it so and fuzziness of expression often belies fuzziness of thought. The less poetically-inclined players in the market – real estate developers, generally – sense that instinctively. Development proformas tend to be unforgiving and are curiously silent in matters of “good intentions.” And fuzziness of expression/thought and well-publicized claims that derive from these shortcomings may lead to a lack of credibility and eventually disinterest in sustainable development – green design and construction could collapse inward upon its own perceived hollowness. Presently unseen by the design and construction industry, the groundwork for that perception may already be in place it might only take a couple successful lawsuits to, at the very least, slow the industry’s momentum. And, since perception is everything, defining key green design and construction concepts and vocabulary in a way that provides better legal protection to design professionals and contractors before the courts do so, is probably wise.

I disagree in part, however, because much of what I’ve read about attempts to define the terms “green” or “sustainable” seems to be relying on the misplaced hope of a successful Grail-like quest for magic words or phrases – an enchantment maybe – that will ward off claims of liability. This is naive and dangerous and the legal community would quickly pierce this verbal sleight of hand, words being the natural playground of attorneys. When a “green” roof leaks, for whatever reason, design flaws, material defects or improper installation – everyone whoever glanced at that roof is likely going to court – at least in the beginning. It won’t matter what color the roof was called or how noble the broader goals of reducing that building’s heat island effect or providing a high-rise downtown nature retreat for the building’s occupants, it’s still a leaky roof and the legal profession will move in swiftly to allocate blame.

A balance between the verbiage used in a project’s green marketing claims (form), and its real performance (substance), is at the core of the high wire act that either strikes that perfect balance between a design professional’s or contractor’s enthusiastic but careless risk, and the proper, responsible promotion of a new way of thinking and building. Using an accurate and supportable vocabulary to promote green design and construction is the first step in sustaining one’s business existence, which is always best way of accomplishing the somewhat loftier goals of the green building movement.

Having generally framed the issues, the next installment of this Law/Ark post will look at the specific causes and consequences of not heeding Mr. Franklin’s wisdom, what “prevention” really is, and how it can be used to reduce the legal exposure of design professionals and contractors in the brave new world of green and sustainable development.

[END OF PART 1 – PART 2 TO FOLLOW SOON]

© Copyright Gary L. Cole AIA, Esq. 2009