One of my blogging buddies, Shari Shapiro, wrote a piece last week about the lack of green building lawsuits. Her post reminded me of a conversation I had with an attorney when I was in New Orleans for the ABA Forum on Construction event. E. Luckett Robinson is a construction attorney in Mobile, Alabama. During our conversation, Mr. Robinson mentioned that he had heard a lot about the potential for green building litigation for a number of years but that no cases had developed. Mr. Luckett wondered if green building litigation would be another iteration of the Y2K virus. You remember the Y2K virus right? It was thought that all the computers of the world would stop working on January 1, 2000. Lawyers also expected Y2K litigation to follow. Of course, computers kept working and the Y2K litigation never developed. Green building litigation, or LEEDigation, will not go the way of the Y2K virus litigation. Why? 1. Motives for seeking LEED certification are changing. Previously, many owners built to LEED certification for environmental reasons, or to develop goodwill with the public. Now, owners see reports that LEED certified buildings lead to greater profit, and these owners then seek LEED certification for monetary reasons. Owners seeking LEED certification for monetary reasons are much more likely to litigate if problems arise. 2. Regulations are requiring LEED certification with greater frequency. Many of these regulations come in the form of mandates. When you create a mandate, you are requiring all parties to comply. Not all parties will want to comply, and not all parties will be able to comply, resulting in further opportunities for LEEDigation.
3. Risk mitigation to avoid LEEDigation is not as easy as risk mitigation to avoid the Y2K virus. To prevent the Y2K virus, patches simply had to be installed on computers. Unfortunately, there are an infinite number of ways that a LEED project can run into problems. Or maybe I am just making this all up. What do you think?