What is the LEEDigation Tipping Point?
I was recently asked to write an article about LEEDigation - green building litigation - for an online construction magazine. As I thought about the topic, I thought about the factors that have prevented this type of litigation from developing. But then I wondered, "what is the tipping point for LEEDigation?"
If you have not read Malcolm Gladwell's Tipping Point, I highly recommend it. Basically, he defines tipping point as:
"the moment when an idea, trend or social behavior crosses a threshold, tips, and spreads like wildfire."
I will share my thoughts on the LEEDigation tipping point when my article is published. But I want to hear from you today.
What do you think will be the LEEDigation tipping point? Or will there even be one?
Photo Credit: matt_stanford
In a word: cost. Litigation is a costly exercise and now is a very uncertain time and no one wants to throw money around for lawyers to fight these issues. So instead, everyone tries to make things work out. I'd be really interested to find out what issues engineers are seeing on this front more than what lawyers are seeing come through. From what my industry sources tell me, it's a litigation cost issue.
I would turn Geoff's point around a bit. You need damages first. So far, green buildings have involved voluntary kudos and not hitting a particular mark translates to sketchy damages.
You miss LEED Silver and thus lose GSA as a tenant? Much bigger deal. Fork over a bond securing certification levels from the land use entitlement process? Bingo, quantified damages. Until we get there, it is intellectual rather than hard dollars.
I think there is something built into the high performance, sustainable design building method that works against litigation. That doesn't mean it won't happen but I belive the integrated, collaborative design process, with it's increased engagments of stakeholders, builders and designers, fosters a sense of mutual responsibility for the certification. In traditional design, it's adversarial from the very start and stays that way. With sustainable design we at least attempt to work together and discuss tradeoffs to achieve balance in cost and efficiency or level of finish, etc. I think it will be the rare case where any one party can be held solely and entirely responsible for failure to achieve certification.
Maybe contracts will be written that have more detailed metrics than "the project will earn LEED certification." The mechanical engineer could be held to a requirement to design a building with a given Energy Use Intensity. But there will be lots of stipulations in the contract about minimum envelope performance, lighting power density and schedule since these are all outside the mechanical engineer's control.
I feel the most likely scenario is litigation from parties outside the design and construction process, especially in taxpayer funded public sector projects. The school in MN that you've discussed is a prime example.
A few years ago an owner (not in a green building) sued their architect, engineer, and contractors for what they deemed to be the excess utility bills for the next 50 years, because they believed the utility bills were higher than they expected. The building had a ground source heat pump system and they were led to believe that the well field had a 50-year life. Upon investigation, the owner's expert found additional problems they alleged were due to the design and construction, which is often the case in a dispute over other issues. The major dollar amount claimed was for the alleged excess electric bills. Since the amount of money at issue was large, as were the risks of prevailing and setting precedent for both sides, the case settled in mediation. This could just as well have happened in a green building.
Larry Spielvogel, PE
Any owner who wants to sue the design team for poor energy performance based on energy modeling is going to be sorely disappointed (assuming the design team gets half-decent legal advice). Building design features (within code norms) only represent 30-50% of the energy consumption characteristics of buildings. The rest of the energy use is driven by maintenance, operation, and occupant behavior. Energy models assume very specific behavior on the part of the owner and tenants, and unless the owner can prove that the building has been operated according to these assumptions, the energy model has no validity as a predictor of actual performance. There are probably fewer than 10 (yes 10!) buildings in the entire country that can actually track this data effectively so as to prove or disprove the validity of the energy model. Most of the hype about building performance lawsuits is based on a big misunderstanding of what you can and can't predict with an energy model.