Update: For a rundown of green building provisions in the stimulus pacakge, see this post.
Thank you to everyone who attended Rutherfoord’s "Trends in Green Building" seminar yesterday and listened to my "Green in the Stimulus" presentation. It was great to recognize so many faces in the crowd. If you came up and spoke to me about speaking engagements or green building legal programs offered by my law firm, please follow up with me so we can make it happen. For those of you who missed the event, I will post the powerpoint I presented to Green Building Law Update (hopefully with a voiceover) on Monday.
Now for the bad part.
The stimulus package is going to result in increased levels of green building litigation. I hope I am wrong, but I think it is inevitable.
In my "Green in the Stimulus" presentation, I highlighted three factors that will contribute to an increase in green building litigation. The first factor is an influx of inexperienced parties attempting to build green. There are many state and local governments that, to date, have not been substantially involved in the green building industry. These entities, with the help of the stimulus funding, are now going to require green building projects through regulation. Here is an example. These state and local governments will be required by the timelines of the law to fast track these green building developments. Do you see the problems that can arise from this scenario?
The second factor will be the requirement that projects attain LEED certification. The website of the General Services Administration states:
As of 2003, all new GSA building projects must be certified through the Leadership in Energy and Environmental Design (LEED) Green Building Rating System of the U.S. Green Building Council, and Silver LEED rating is encouraged.
The GSA will not be the only entity requiring LEED certification for projects. Who will be responsible for achieving the LEED certification? What happens if the project fails to achieve the LEED certification?
Finally, the third factor that will result in more green building litigaiton is the emphasis on energy efficiency. The drive to build green primarily centers around the desire to reduce building energy use. However, it is very difficult to anticipate how a building will actually perform. Under the LEED rating system, energy efficiency is modeled through ASHRAE. Buried deep in a ASHRAE appendix (ASHRAE 90.1, Appendix G, Section G1.2, Note 2) is the following disclaimer:
"Neither the proposed building performance, nor the baseline building performance are predictions of actual energy consumption or costs for the proposed design after construction. Actual experience will differ from these calculations due to variations such as occupancy, weather, energy use not covered by this procedure, changes in energy rates between design of the building and occupancy, and the precision of the calculation tool."
Not every government or municipality will see or understand this caveat. Heck, many of the entities requiring certification don’t even understand the acronym for the LEED rating system. What happens when the new green buildings don’t actually reduce energy usage?
I am not the only one concerned about these issues. Real Life LEED initially raised factor three. Are we wrong? Tell me.
- LEED Risk Management: Crossing the Model/Reality Chasm (Real Life LEED)
- "The Stimulus: Now for the Hard Part" (GBLU)
- The Stimulus: Green Building Provisions (GBLU)
- The Stimulus: "LEEDS"ing the Way (GBLU)
- The Stimulus: FedBizOpps Has Green (GBLU)
- The Stimulus: States Have Green Too (GBLU)
- The Stimulus: Build Relationships Now (GBLU)