How will LEED and Green Building impact the practice of law, and litigation in general? This presentation looks to answer that question. To be given by Chris Hill and Scott Wolfe at the Green Legal Matters conference this upcoming September, these are the slides that will (likely) be used.
8. also known as green construction or sustainable building, is the practice of creating structures and using processes that are environmentally responsible and resource-efficient throughout a building's life-cycle : from siting to design, construction, operation, maintenance, renovation, and deconstruction. This practice expands and complements the classical building design concerns of economy, utility, durability, and comfort. What is Green Building? http://en.wikipedia.org/wiki/Green_building
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11. 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. “ http://www.lawarkbuilding.com/?p=104 Law Ark Building Blog
12. Cole may be right that there is no novelty to the traditional types of claims (contract, tort, statutory, etc.) that may arise in green construction disputes. However, the novelty in the green building industry is the new set of standards that will inevitably become part of the legal dispute. In other words, while “a leaky green roof is still a leaky roof” … there will be new risks to be allocated, different types of damages lost, additional players involved, varied proof required and, yes, perhaps a novel cause of action alleged because that leaky green roof system failed. “ Best Practices Construction Blog http://bit.ly/diszmS
15. Green Growth is phenomenal across the globe. Harvey M. Bernstein, McGraw-Hill Construction “
16. Green Building Construction Grows 5x ($10b to $49b) Green Outlook 2009: McGraw-Hill Trends Driving Change Report 2005 - 2008 Could Triple, reaching $140b 2009 - 2013
25. ...Expect the unexpected. Always sounds like good advice. Except, of course, if you are expecting the unexpected, then well then it really isn't really unexpected anymore. Is it? And that leaves you vulnerable to the truly unexpected. Because, you're not expecting it. “ Control Expectations
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27. Shaw Development v. Southern Builders Contract required “Silver LEED Certification,” but lacked clear specifications. Two lessons: - Builder’s obligation to achieve certification and build to specs must be aligned; - Certification is not a guarantee, and architects / builders should be weary of promising a certification.
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29. Things That Affect A Building’s Energy Performance A building’s energy performance can be a very complex matter, affected by things out of the builder / architect’s control: - Climate - Use and Users of Building - Third Party Interference
30. Allocate Responsibility The LEED Program allocates responsibility for points between the Owner, Builder and Architect. It is an error to not allocate responsibility for green building design and construction when contracting.
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32. Greenwashing (green whitewash) is the practice of companies disingenuously spinning their products and policies as environmentally friendly, such as by presenting cost cuts as reductions in use of resources. It is a deceptive use of green PR or green marketing. The term green sheen has similarly been used to describe organizations that attempt to show that they are adopting practices beneficial to the environment What is Green Washing? http://en.wikipedia.org/wiki/Greenwash
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Hinweis der Redaktion
Introduction
Before talking about the specific (green building litigation), it’s important to get a grasp on general construction litigation...and what causes this type of litigation.
Generally, litigation arises because of unfulfilled expectations.
Before specifying what causes green building litigation and how to prevent it, an overview of just what green building is could be prudent. The presentation title focuses on LEED, but we should try to keep discussion broad to encompass green building in general.
From the LEED website, defining LEED
A “competitor” of the LEED Certification Process
EPA’s Energy Star Ratings and Standards
A basic definition for “green building”
What exactly is LEEDigation, and how is it different from ordinary litigation?
Introduction
This debate between Gary Cole and Matt DeVries really underscores the point of our presentation, and that is, how does green building issues bring anything unique to the practice of law and the world of litigation. How? It provides attorneys and clients with new risks to be allocated and managed. It presents unique “damages” situations. It adds new parties to the fold, and the like.
Generally, litigation arises because of unfulfilled expectations. The same thing for LEED or other green building projects...its just different expectations.
Is all this hypothetical, or is it probable to happen? The next slides take a look at some figures about the growth of green building. There’s no reason to believe that green building disputes will be “immune” to litigation.
How are these green building cases going to be resolved? Unfortunately, no one really knows right now.
These green building cases present unique damages issues.
How Do You Prepare for these green building vulnerabilities?