I continue to be amazed by the lack of litigation stemming from the LEED certification process – i.e. LEEDigation. There are only two instances of pure LEEDigation – Shaw Development and Northland Pines. I’m not even sure Northland Pines counts since it has not resulted in a lawsuit.
What factors have contributed to the non-litigious nature of the LEED rating system so far?
The recent Northland Pines High School LEED certification challenge was a bellwether as to how the United States Green Building Council plans to enforce the LEED rating system. The USGBC made it clear that it was not interested in de-certifying buildings. If the USGBC continues to work with owners, designers, and contractors to remedy green buildings instead of yanking LEED certification, then the chances for LEEDigation remain small.
Prior to the Great Recession, many building owners developed green buildings for non-financial reasons. When there were fewer LEED buildings, obtaining certification ensured press clippings and adoring fans. It is difficult to measure loss of goodwill if a project fails to obtain a certain level of certification. As LEED buildings have become more common, and green building regulations more prevalent, owners are demanding LEED certification for financial reasons (higher tenant demand, lower operating costs, increased productivity). As financial reasons increase in importance, the chances for LEEDigation increases.
The Great Recession was certainly not a good thing, and the legal industry was not spared: "As of April 8, 2010, over 14,696 people have been laid off by major law firms … since January 1, 2008." These layoffs occurred because there was a decrease in the demand for legal services, including litigation. The construction and real estate industries were particularly hard hit by the recession, and demand for litigation from these industries correspondingly dropped. The green building industry may have avoided significant LEEDigation because parties were less willing to engage in costly litigation.
Do you have any theories as to why LEEDigation has not developed?
Photo Credit: w0ld