LawArk

Posts Tagged ‘Sustainability’

     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.

          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 »

A March 26, 2009 Wall Street Journal article by Keith Johnson “Subprime Carbon: Environmentalists Warn About the Next Big Bubble” discusses the caution urged by some environmental groups in creating a too aggressive carbon dioxide trading market in the midst of the current U.S. financial problems and the failure of Europe’s carbon cap and trade markets.

From Johnson’s article, in part:

“The biggest worry is how businesses are meant to adapt to a world where the price for a new must-have asset—the right to emit carbon dioxide—can swing so violently. In Europe, for instance, prices for carbon permits have whipsawed from a high of 30 euros a ton to a low of 2 euros a ton.

Just as sketchy home mortgages set the stage for the subprime mess in U.S. banking markets, sketchy environmental initiatives threaten to create a “subprime carbon” mess, environmental group Friends of the Earth warned today. If correctly valuing McMansions was tough, how hard will it be to properly price the environmental benefits of a Mongolian wind farm, or other measures meant to reduce emissions of greenhouse gases? Carbon permits are still derivatives, after all.

That’s why Friends of the Earth is so leery of the climate proposals currently circulating around Washington. A cap-and-trade plan would create a huge new market in emissions permits at a time when Wall Street and Washington have their hands full figuring out how to police existing markets. One key element in all the climate proposals floated so far is the use of “offsets,” or the ability to purchase emissions reductions made somewhere else. As Friends of the Earth says in a new report, “Subprime Carbon”:

Given the lack of proven mechanisms to govern commodities, it is imprudent to so hastily create the largest derivatives market in the world and foist it upon a new and untested regulatory regime.”

Friends of the Earth is wise in urging caution – will the Obama administration and Congress listen?

© Copyright Gary L. Cole 2009

Editor’s Note: As previously stated, Law/Ark takes no political position on matters of Climate Change. Law/Ark believes that the best minds are broadly informed and open to all views and that reasonable people are free to disagree. The truth is far more important than ideology.

A February 18, 2009 posting in Law/Ark looked at George Will’s February 15, 2009 article in the Washington Post, “Dark Green Doomsayers.” Law/Ark’s light-hearted take on the article was to compare the global cooling climate change claims of the 1970s with the current claims of global warming.

Other readers of Will’s article were less concerned with history and have taken umbrage to his factual assertions about the scientific consensus regarding whether the planet is indeed warming and whether such warming is anthropogenic – human caused. The Post has defended Will.

Among Will’s dissenters is “Friends of the Earth,” a grass-roots environmental group which has called for the Washington Post to formally retract Will’s “errors” in part as follows:

“George Will’s February 15 Washington Post column, “Dark Green Doomsayers,” contained numerous factual errors that painted a highly misleading picture of scientific knowledge about global warming. This is not the first time the Washington Post has published demonstrably false statements written by propagandists who wish to deny climate science.

Which brings me to something I’ve always wondered about – how does one actually “deny science”? Isn’t the whole point of science – as opposed to religion – its provability? Religion depends on faith, not proofs. Applying the scientific method to a theory gives rise to “scientific facts” that rely, in part, on the strength of their proofs – faith’s not much of a factor. While I may not have the training to always understand those proofs, if one hundred percent of the esteemed grey beards in a room are nodding up and down, I call that a consensus and okay, I’m in. But if a couple are shaking their heads, or just aren’t so sure – maybe they see something the others don’t. Let’s hear what they have to say. What’s the PhD tipping point at which a scientific theory become scientific fact – or “fact” changes back to theory? Is a majority of believers a consensus if underlying facts are still in dispute – even a little? And can a concensus of believers ever trump a contrary objective truth by the sheer weight of their numbers? I don’t know – but I think we have a problem when either side of a debate refuses to play anymore.

Regardless of which side of the global warming debate Law/Ark’s readers take, Will was right in one respect – global cooling was the dominate Climate Change claim of the 1970s. As a young nipper back then, I remember well the eyeball-freezing wind chill of Illinois winters and the hypothermic agony of endlessly waiting for that damn tire chain-rattling, salt-encrusted school bus to come creaking around the corner. New Ice Age? You bet, made sense then – but not so much now. And while near frost bite was all the proof I needed then to believe that glaciers were fast approaching, when those predictions proved wrong I learned to be a little more cautious in drawing conclusions based on limited personal experience and in hastily adopting the claims of a “consensus.”

As Law/Ark has previously stated, let the Climate Change debate continue – but let it done with respect, open-mindedness and intelligence. I’ve heard some say, “debate is what makes our country great.” I say, “no, good debate is what makes our country great – anything else is mere anarchy.” Surely we can do better than that. Let both sides be heard – and listened to.

© Copyright Gary L. Cole 2009

A March 27th Bloomberg.com article by Gianluca Baratti cites a study by Gabriel Calzada, a professor of economics at King Juan Carlos University in Madrid, which reports that for every new job created by President Obama’s proposed federal subsidies for clean-energy programs, at least 2.2 jobs will be lost.

According to Baratti’s article:

“U.S. President Barack Obama’s 2010 budget proposal contains about $20 billion in tax incentives for clean-energy programs. In Spain, where wind turbines provided 11 percent of power demand last year, generators earn rates as much as 11 times more for renewable energy compared with burning fossil fuels.

The premiums paid for solar, biomass, wave and wind power – - which are charged to consumers in their bills — translated into a $774,000 cost for each Spanish “green job” created since 2000, said Gabriel Calzada, an economics professor at the university and author of the report.

“The loss of jobs could be greater if you account for the amount of lost industry that moves out of the country due to higher energy prices,” he said in an interview.”

© Copyright Gary L. Cole 2009

Editor’s Note: Law/Ark takes no political position on matters of Climate Change. Law/Ark believes that the best minds are broadly informed and open to all views and that reasonable people are free to disagree.

Syndicated columnist George F. Will’s February 15, 2009 column in the Washington Post, “Dark Green Doomsayers,” compares today’s Climate Change predications to the opposite – but no less dramatic – predictions from the environmental movement’s Paleolithic Era of the 1970s.

Most of us who survived the Nixon/Ford/Carter-era fashions and music of the 70s can also remember our Cold War survival training – that swift “duck and cover” behind radiation-proof plywood grade school desks. Good times. But a few years before the left-jab, right-hook combo of Three Mile Island and “The China Syndrome” KO’d the U.S. nuclear power industry and brought the infant environmental movement into full adolescence, some scientists began hearing the clopping hoof beats of the Environmental Apocalypse’s earliest horsemen – Global Cooling. That’s right, huddled beneath our desks, heads between our knees in prayer, we feared both the hyper-sonic furnaces of nuclear tipped Soviet ICBMs and the swift advance of an impending Ice Age.

Will chronicles this in part:

“In the 1970s, “a major cooling of the planet” was “widely considered inevitable” because it was “well established” that the Northern Hemisphere’s climate “has been getting cooler since about 1950″ (New York Times, May 21, 1975). Although some disputed that the “cooling trend” could result in “a return to another ice age” (the Times, Sept. 14, 1975), others anticipated “a full-blown 10,000-year ice age” involving “extensive Northern Hemisphere glaciation” (Science News, March 1, 1975, and Science magazine, Dec. 10, 1976, respectively). The “continued rapid cooling of the Earth” (Global Ecology, 1971) meant that “a new ice age must now stand alongside nuclear war as a likely source of wholesale death and misery” (International Wildlife, July 1975). “The world’s climatologists are agreed” that we must “prepare for the next ice age” (Science Digest, February 1973). . . .”

Global Cooling? A new Ice Age? Let’s just keep those silly notions packed away with streaking, primal scream therapy, pet rocks, disco and Jimmy’s wool cardigan.

Good thing we know better now…..

© Copyright Gary L. Cole 2009.

During the recent U.S. Presidential campaign, both the Republican and the Democratic candidates pledged to support mandatory emissions (carbon cap-and-trade) legislation to address climate change concerns. But neither Chicago nor other world financial markets were waiting for the White House and Congress to take legislative action before forming what has become a global emissions trading market.

In 1999, the Dow Jones Sustainability Index was launched to track the performance of world leading sustainability-related companies. In 2003, the The Chicago Climate Exchange (CCX) and the Chicago Climate Futures Exchange (CCFE) were launched. The CCX trades the “Carbon Financial Instrument” (CFI) futures contract, while the CCFE trades futures and options contracts on emission allowances and other environmental products including the “Regional Greenhouse Gas Initiative” (RGGI) Futures Contract. In 2005, the CCX formed the European Climate Exchange (ECX) which trades its contract on carbon dioxide emissions (EUAs) and the EUA options contract. The CCX, CCFX and ECX are owned by Climate Exchange Plc (CLE) which is listed on the AIM market of the London Stock Exchange. The New York Mercantile Exchange – The Green Exchange is expected to be launched in 2009 and intends to offer environmental risk management and trading products.

The Chicago Climate Exchange has also formed joint ventures with the Montreal Exchange to form the Montreal Climate Exchange (MCeX), as well as with the China National Petroleum Corporation Assets Management Co. Ltd., and the Tianjin Property Rights Exchange to form the Tianjin Climate Exchange (TCX), to implement the BinHai Comprehensive Reform Plan approved by the Chinese government in 2008.

Whether mandatory cap-and-trade legislation is good for either climate concerns or economic development is still to be seen, but it’s clear that the world financial markets have already seen the future – and it is green.

© Copyright Gary L. Cole 2009