Thoughts on construction law from Christopher G. Hill, Virginia construction lawyer, LEED AP, mediator, and member of the Virginia Legal Elite in Construction Law

Be Careful with “Green” Construction

UT Dallas 74,000-square-foot (6,900 m2) Studen...
UT Dallas 74,000-square-foot (6,900 m2) Student Services Building (Photo credit: Wikipedia)

As readers of Construction Law Musings can attest, I am an enthusiastic (if at times skeptical) supporter of sustainable (or “green”) building. I am solidly behind the environmental and other benefits of this type of construction. However, I have likened myself to that loveable donkey Eeyore on more than one occasion when discussing the headlong charge to a sustainable future. While I see the great benefits of a privately built and privately driven marketplace for sustainable (I prefer this term to “green” because I find it less ambiguous) building stock and retrofits of existing construction, I have felt for a while that the glory of the goal has blinded us somewhat to the risks and the need to consider these risks as we move forward.

Another example reared it’s ugly head recently and was pointed out by my pal Doug Reiser (@douglasreiser) at his Builders Counsel Blog (a great read by the way). Doug describes a project that I mentioned previously here at Musings and that is well described in his blog and in a recent newsletter from Stuart Kaplow (@stuartkaplow), namely, the Chesapeake Bay Foundation’s Philip Merrill Environmental Center project. I commend Doug’s post for a great description of the issues, but suffice it to say that the Chesapeake Bay Foundation sued Weyerhauser over some issues with a sustainable wood product that failed. While the case was dismissed on statute of limitations grounds, the case illustrates issues that arise in the “new” sustainable building world.

While at bottom, the legal considerations for us construction attorneys are not all that different (breach of contract, construction defects, failure to meet plans and specifications), some of the risks inherent in the process are either new or old ones wrapped in new materials. In short, we’re using old materials in new ways and using new materials that hadn’t been used before in these types of projects. This means that we don’t have the years of engineering data to back up proper use of these materials and this can lead to issues over time.

My fear is not that energy efficiency and other benefits of sustainable building will not be met, but that failure to see and anticipate these risks will lead to setbacks in the process. On major problem with a “green” project (LEED or otherwise) will do more to slow the process than taking our time and doing things right the first time. As my dad used to say: its better to be 5 minutes late than speed to be there “on time” and get a speeding ticket that slows you down even more.

Thanks again to Doug and Stuart and please let me know your thoughts. Am I off base? What do you think?

As always, I welcome and encourage your comments below, please share your thoughts. Also, please subscribe to keep up with the latest Construction Law Musings.

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8 Responses to Be Careful with “Green” Construction

  1. I am 100% behind your view, Chris. Lack of planning is the biggest issue facing most green project these days. Owners are still unfamiliar with how to manage performance expectations, certification lags, and new product risk. Better roundtable discussion during contracting can really help build better expectation and risk planning.

    Thanks for the post – and mention.

  2. No you are definitely not off base as history has shown time after time.
    The one item I think needs to be stressed (to HO’s, Businesses, maintenance Personal, etc…) is that just because something is green &/or might require less maintenance does not mean that you don’t have to do maintenance or at least check up on it.
    On the flip side of this is that the Architects, Designers, Salesmen, Contractors, Engineers, etc… need to keep in mind is not to oversell a product & manage customer expectations – it is much better to undersell a product or solution & let them be blown away that it was X & then so much more.
    Sean @ AlaGBS / SLS Construction recently posted..Safety Sunday: Building Safety Month; Energy & Green BuildingMy Profile

  3. “The glory of the goal has blinded us somewhat to the risks and the need to consider these risks as we move forward.”

    Thanks for the insight Chris, and yes you are very much on track with that statement.

    The goal of green is great, but we must continue to tweak the processes and methodologies. Lack of planning (Doug), lack of proper maintenance (Sean), and lack of proper construction the first time (Chris) are not problems that are fixed by building green.

    Implementing effective methodologies which address current industry issues is a better way forward than simply “greening everything.”

  4. As an estimator in the construction business, I have seen significant LEED efforts to be green go overboard at the expense of price. I think that a project should be well designed from the every aspect and not focus on just being green. Lets not create new problems just because we have a new fad in the construction world. Tried and tested methods should be the over riding foundation in constructing buildings today while adding in some new green aspects. A good architect will find the right balance between the two.

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