This month’s Virginia Business Magazine is a great issue on green jobs in Virginia. The whole issue is very worth reading.

I was fortunate enough to be interviewed in connection with the piece entitled “LEEDing the Way?” The topic of discussion in this article is the incentive provided by the market and state and local governments for building green.

Please check it out.

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For this week’s Guest Post Friday here at Construction Law Musings, we welcome back Elaine Hirsch.  Elaine describes herself as a kind of a jack-of-all-interests, from education and history to medicine and videogames. This makes it difficult to choose just one life path, so she is currently working as a writer for various education-related sites and writing about all these things instead.

While layoffs and business closings are making the news, there is one sector that is quietly educating and growing a new economy filled with transformation and economic recovery. Leadership in Energy and Environment Design (LEED) initiatives not only consume less energy in the long run, but bring recognition and cost savings for institutions in the short run. MBA Online states that the need for innovation is driven by an exceptionally difficult economic environment, and given today’s stagnant economy, greener energy solutions have become such innovations. According to the Pew Charitable Trust report, between 1998 and 2007 there were two times the amount of job creation in the clean energy sector as any other sector in the nation.

One of the significant differences in LEED driven job positions is that there are levels and opportunities unlike manufacturing or service positions that offer little growth. It is not necessary to spend the rest of your life paying back a student loan when going into a LEED based educational field. To date, there are almost 175,000 LEED professionals throughout the world that have been certified in special areas of green energy and this number is expected to double in the next 2-3 years. According to the US Green Building Council, green construction contributed to 2.4 million jobs between 2000 and 2008, and this number is expected to grow to 7.9 million by 2013.

The government has provided the work available through a Coalition for Better Buildings and affordable training can be easily found. There are 34 states to date that have adopted LEED-based policies for public and private buildings and hundreds of local governments are following suit. Being a veteran offers even better programs with reimbursements available for exams. Many times receiving a LEED Certification in a given area of your interest can open doors just by getting hired by a fine company at the ground level.

The economy is not continuing on a downward slide but simply transitioning into a new direction if you take the time to notice a LEED-based career and where it can lead. Just as electricity, gas-powered vehicles and plastics have changed our way of life, electronics, renewable energy and LEED building is leading us in a new, exciting direction. Take part in the positive side of a changing world and find out how beneficial Sustainability Education and Economic Development (SEED) can guide you to being competitive in the direction of tomorrow.

As always, Elaine and I welcome your comments below.  Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

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I would like to say a big thank you to Rich Cartlidge and his Green Building Envirotrends Blog for allowing me to guest post. Connections with great folks like Rich are what keep me going here at Musings. Please check him out on Twitter and explore his blog.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

For this week’s Guest Post Friday, we welcome a couple of authors.  Gary Klein has been intimately involved in energy efficiency and renewable energy since 1973.  His firm, Affiliated International Management LLC, provides consulting on sustainability.  Craig Conner has been involved with energy efficient buildings since 1976.  He is active in the development of energy and green related building codes.

We, along with several code enforcement staff and colleagues from around the country, proposed changes to the IGCC that would cut its size of the new green code by 2/3. Why revise the IGCC so radically?  Because we want green to actually happen.  The IGCC needs to be simple, understandable, usable, useful and enforceable.

As a society, we celebrate adopting something with Green or Sustainable in the tile.  But our goal is not titles; it is impact on buildings, on people, on the environment.  We should celebrate the greening of buildings.  So how is the implementation of the IGCC doing?  Poorly.

Who has adopted the IGCC?  Richland WA, Maryland, Oregon, North Carolina, Scottsdale AZ, and others.  An impressive list.  Are they really using it? The city in which Craig resides, Richland WA, was the first to adopt the IGCC in August 2010.  So far the total number of buildings built under the IGCC is zero (none).  Richland adopted the IGCC as a “non-mandatory document.  Is Richland a greener city because of this code?  Not yet.  In Maryland the IGCC is an “optional requirement”.  North Carolina used only the rainwater provisions.  The IGCC is an “alternative requirement” for new public buildings in Rhode Island.  Oregon only adopted parts of the IGCC, but modified the energy chapter and utilized the IAPMO Green Plumbing and Mechanical Code Supplement for the water chapter.  Other “adoption” stories are similar.

How many have really applied the IGCC?  Hundreds of buildings would be a comforting answer.  Cities or states that routinely applied the IGCC, just like the other I-codes, would be good.  Are there even 10 buildings that have fully applied this adopted code?  We doubt it.  Have any really applied Craig’s least favorite least favorite chapter, energy?  What was the definition of “green washing” again?

In the language of Dr. Seuss- Green is good.  More green is better.  No green is not good.  An unused green code, that can’t be good?

Do we oppose green?  Hardly.  Our careers have focused on energy and water efficiency.  We are currently active in revising ICC 700 (residential green standard).  We were active in the 2012 IECC and IGCC code development processes.  Craig has authored or helped with many IECC energy upgrades.  Gary is active in ASHRAE standards development, sits on the IAPMO Green Technical Committee and is nationally recognized for his work on the water-energy-carbon footprint connection.  In addition to us, there were four code enforcement staff signatures on GG34, staff with extensive code development, training and code enforcement experience.  (“GG34” is the number given our proposal in the IGCC code development process.)  Our entire GG34 team acknowledges input from many others, mostly code enforcement staff, from around the country.
So who wants this “Simple Green”.  Among others, many code officials that want to use the IGCC.

Mike Collignon’s post on the recent IGCC code development hearings was a pleasure to read.  We agree with Mike’s assessment that the initial large group of code official voters would likely have supported simplifying the IGCC as represented by GG34.  The first day’s large audience only got to vote on one part of GG34, and gave us a 77% “yes” vote.  Later votes that GG34 lost were based on smaller groups, sometimes much smaller groups of voters.

We believe the typical code official wants something that can be used.  They want the Simple Green.  Without the Usable IGCC, the price of complexity in the code world is confusion and lack of compliance.

Most code changes come from product makers, trade associations, or advocates of various good causes.  As such their focus is a few sections or maybe a few pages in a 200+ page IGCC.  They don’t see complexity as they are only concerned with a small fraction of the code.  We are trying to make the whole code usable, which is why so many of our supporters are those that have to use the whole code, the code officials.

What did we propose to change in the IGCC to get Simple Green?  GG34 was based on a number of principles.  A longer version can be found here.

• Principle:  Focus on the core of green: energy and water.  IGCC energy should be built on the IECC.  IGCC water should be built on the IPC.

The IGCC content on water is OK, but we clarified and condensed the chapter, cutting the code text in half by removing language already in other I-codes and by creating a section for provisions shared by graywater, rainwater and reclaimed water.  In contrast, the content in energy is a mess. We believe the IGCC creates a new energy code, missing the ICC mandate to be an overlay to the IECC in energy.

Why do we say a new energy code?  IGCC covers plug loads (outside the scope of the IECC).  IGCC uses a new metric, source energy, while the IECC, ASHRAE 90.1 and ASHRAE 189.1 (ASHRAE commercial green) all use energy cost.  Just look at the tables of multipliers in the IGCC energy chapter, none of these factors even applies in the IECC.  IGCC adds several equations, such as for greenhouse gases; let’s just reduce energy use and the greenhouse gas will be improved even if we don’t do a calculation.  IGCC creates a “zEPI”.  So what zEPI value equals energy code compliance?  There is not an answer, they are apples and oranges.

An important acknowledgement: To be fair to the IGCC development committee, they were not given enough time.  Given another year with another cycle we believe they would have fixed may of the issues GG34 dealt with.

Are there precedents for simpler codes being better?  Yes, for example, the rewrite of the 2003 IECC resulted in the 2006 IECC that was only 1/3 the length  with the smaller code having more impact.

Let’s be clear.  The I-codes should include a green code.  We are absolutely not trying to create a competing green code.  We advocate adoption of the IGCC (and I-code family), and will offer a set of amendments that a jurisdiction can adopt to produce a Usable IGCC, or “Simple Green”.  We expect to have that revised Usable IGCC with amendments based on the 2012 IGCC and reasons by late January.  Send us an email then if you want a copy (free) when it is ready.

As always, Mike, Kevin and I welcome your comments below.  Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

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Over the past week or so, several great pieces have been written across the web relating to green building and other construction industry related topics.  Without re-hashing the great analysis found in those articles, I thought that it would be helpful to point them out.

On the green building front, the International Green Construction Code or IGCC (2.0) was introduced at Green Build to much debate and acclaim.   As pointed out by my friend and fellow LEED AP construction attorney, Doug Reiser (@douglasreiser) in his Builder’s Counsel Blog, several states and municipalities have adopted this construction code.  Whether you agree or disagree with this move, it is time to get educated on this development and how it could affect your business going forward.  To do so, check out the webinar and audio at Chris Cheatham’s (@chrischeatham) Green Building Law Update for some great analysis.  Chris also has a series of articles analyzing the IGCC that are worth a read.

On another note, the U. S. Supreme Court recently upheld the constitutionality of the Legal Arizona Workers Act.  While in and of itself this does not implicate construction in Virginia, it very well could.  One aspect of the AZ law is the requirement of the use of E-Verify to determine the immigration status of workers.   The penalty in Arizona is potential revocation of business charters and licenses.  As pointed out by my fellow presenter at Green Matters and pal Scott Wolfe (@scottwolfejr), this latest ruling rekindles the debate relating to E-Verify and could lead to a patchwork of different regulations for those that work in various states or on federal construction projects.  I highly recommend Scott’s analysis of this issue that is linked above.

These latest developments have legal implications for the construction professionals in Virginia and elsewhere.  Regardless of what state you are in, be sure to consult with an experienced construction lawyer in your state as these developments progress.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

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For this week’s Guest Post Friday here at Construction Law Musings, we welcome Elaine Hirsch.  Elaine describes herself as a kind of a jack-of-all-interests, from education and history to medicine and videogames. This makes it difficult to choose just one life path, so she is currently working as a writer for various education-related sites and writing about all these things instead.

Universities across the country are constructing new buildings in compliance with LEED, or Leadership in Energy and Environmental Design, a system of ratings devised by the United States Green Energy Building Council. LEED is designed to provide a guide for green construction and maintenance through a building’s entire existence. When a building is LEED-compliant, it’s certified as including green technologies and maintenance practices.

LEED compliance isn’t mandatory, but certification provides evidence recognizable to the public that the organization behind the building is committed to the environment. This public recognition is important to many universities because it helps justify the cost of new construction.

University buildings are typically funded in part by state taxpayers and in part by students’ tuition, and both are less likely to bemoan the cost of new construction if it’s LEED-compliant because an environmentally conscientious building is seen as an asset to the university. Alumni, even recent graduates who’re busy pursuing master’s degrees, are more likely to contribute financially to their alma mater if they see their donations are supporting an environmentally friendly campus.

One notable example of the incorporation of LEED-compliant buildings into a college campus is at Washington University in St. Louis. The William H. and Elizabeth Gray Danforth University Center has received a LEED gold rating from the USGBC. The University Center offers environmentally friendly features such as low-flow toilets and faucets, a 50,000-gallon tank to collect rainwater and groundwater for irrigation, light sensors which automatically adjust lighting levels, and locally sourced building materials.

The building had received national recognition and press for its green features, which not only save money on irrigation and electricity, but also helps publicize the university. This publicity attracts students as well as private donations.

Other universities are following suit and planning their own LEED-compliant buildings. The University of Wisconsin at River Falls built a new River Falls University Center that has earned a silver LEED certification. Aside from incorporating green features and building materials, the art and design of the University Center incorporates the theme of the the Kinnickinnic River and the other rivers that give the town of River Falls as well as the university its name. Like Washington University’s new building, this center has garnered the University of Wisconsin at River Falls positive press.

LEED compliance may become the norm rather than the exception as more universities look for ways to cut costs on utilities, as well as justify the cost of new construction to a skeptical public. Washington University at St. Louis, for example, plans to ensure all its buildings constructed after 2008 meet the requirements for at least the silver LEED rating. Over time, the university will save millions in the cost of watering and electricity, as well as become known as one of the nation’s most environmentally-friendly campuses.

Students and alumni alike appreciate efforts like these to become more environmentally friendly. In addition to the environmental benefits of LEED-compliant construction, the additional monetary support universities stand to gain from approving alumni and as a result of positive publicity enable them to allocate more money to educational initiatives and other worthy projects.

As always, Elaine and I welcome your comments below.  Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

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For this week’s Guest Post Friday, Musings welcomes Imad Naffa.  Imad is the Founder and President of NAFFA International, a private Building Code Services firm  in Fresno, CA. He is also the Developer and Administrator of the Building Code Discussions Group (BCDG), one of the largest building code online communities on the internet with 23,000+ members from 100+ countries.

You can also find him on the web where he posts on topics dealing with Building, Fire and Accessibility /ADA codes, housing and construction;  along with news relating to  design, construction, LEED/Green/CALGreen and Global Affairs.

You can follow Imad on Twitter (@imadnaffa). If you have technical questions related to Building, Fire,  Accessibility/ADA Codes or CALGreen, Imad would be happy to respond by email.

Background

Every three years, the building codes are updated. That in by itself is always a challenging time for all involved in the building permitting process (Owners/Developers, Design Team and the Code Enforcement Community).

In California a new family of building codes, known as the 2010 California Codes, became effective throughout the state on January 1st, 2011.

This time around, a brand new code known as the “2010 California Green Building Standards Code”,  aka “CALGreen”, was introduced.  This code is Part 11, of the California Code of Regulations, Title 24. It is the nation’s first statewide green building standards code and applies to newly constructed residential and nonresidential occupancies.

CALGreen stems from former Governor Arnold Schwarzenegger’s mandate to reduce greenhouse gases in California.  Estimates predict a reduction of 3 million metric tons of greenhouse gases by 2020 as a result of the requirements of CALGreen.

CALGreen creates uniform and consistent environmental regulations for new California buildings, but it is not meant to replace individual jurisdictions’ environmental programs and ordinances. The Code requires that all local environmental ordinances still be followed. Local jurisdictions also have the ability to amend portions of the Code based on a finding of need due to climate, topography, or geology. Complementary sustainability programs, such as Leadership in Energy and Environmental Design (“LEED”), may still be used as long as they do not interfere with CALGreen requirements. Some jurisdictions in California had their own Green Codes before CALGreen came about.

Among other things, CALGreen goals are:

• Reduce construction waste;
• Make buildings more efficient in the use of materials and energy; and
• Reduce environmental impact during and after construction.

Only new construction is subject to the mandatory provisions of CALGreen; remodels, retrofits and additions are not affected. Residential buildings subject to CALGreen include buildings that are three stories or less, including motels, hotels, apartments, and one-and two-family dwellings. Nonresidential buildings subject to the Code include state-owned buildings, state university, and community college buildings, and privately owned buildings used for retail, office, and medical services.

The Code includes requirements for site selection, storm water control during construction, construction waste reduction, indoor water use reduction, material selection, natural resource conservation, site irrigation conservation and more. Significant documentation of compliance with these mandatory provisions is required.he Code provides sample compliance forms and worksheets, which may be acceptable or required by the local building department.

Commissioning, a process for the verification that all building systems (heating, cooling, lighting, etc.) are functioning at their maximum efficiency, is also required for certain buildings.

In addition to the mandatory requirements, the Code includes Tier 1 and Tier 2 provisions. These are voluntary measures that a building may choose to comply with for even greater efficiencies than those called for in the mandatory requirements, with the Tier 2 provisions being the most efficient.

CALGreen Mandatory Provisions

The mandatory minimum provisions in CALGreen have elements that go above and beyond a typical building department’s role and may require additional training, and likely special inspections and/or increased fees. To help in interpreting and enforcing CALGreen mandatory provisions,  California’s Housing and Community Development Dept. (HCD)  released A Guide to the California Green Building Standards for Low-Rise Residential, and  a similar guide to the nonresidential. These documents are a key first step providing guidance and documentation helpful to the enforcement of the mandatory provisions in CALGreen.

CALGreen Tiers

In addition to the mandatory measures in CALGreen, the code also includes two voluntary packages of above-minimum  green practices, called “Tiers.” The Tiers include all the mandatory CALGreen measures plus additional required practices (prerequisites), with a further requirement to choose a set number of optional measures from lists.  Unlike the mandatory provisions of the code, the CALGreen Tier structure and associated provisions are a work-in-progress that requires additional definition and interpretation before they can be implemented and verified consistently across regional boundaries. While the HCD and California Building Standards Commission (CBSC) have provided guides to CALGreen that address the mandatory provisions, these guides provide little guidance on implementation and verification of the Tiers. Until a guide is developed for the Tiers, the burden of defining and verifying the Tiers is assumed by the local enforcing agency, which will need to allocate sufficient resources to ensure proper compliance. In addition, if the Tiers are adopted by a jurisdiction, the growing number of projects that utilize third-party rating systems—either as a requirement or voluntarily—may incur costly and duplicative documentation and verification procedures, resulting in the unintended consequence of discouraging rating systems, and diminishing a key reward for exemplary performance.

Challenges

As an engineering company that specializes in the plan review process and building code consultations for dozens of building departments in California, a part of our plan review process will be checking for compliance with CALGreen.  I’ve stated in the past, that for green and sustainable construction to take a foothold, it had to be incorporated in the codes and not simply be a voluntary process. Well now we have that in California. The green related provisions are in the code and we have to deal with them from this point on.

For the design and construction community, confusion remains. What is expected of them is being asked even today. Many training opportunities have been offered to the design and code enforcement sectors throughout the state, but now it’s the real thing. How to comply. What needs to be done!

What do the plans and specifications have to show. What about the  inspection process? Who will do what and will there be a need for third-party inspections and verifications.

At a time when building departments are stretched to the limit with depleted resources, drastically reduced budgets and personnel, the new adopted codes in general, and CALGreen specifically, will test the system in a grand scale.

From the plan review side, most of the requirements will be dealt with through forms and notes that will need to be added to the drawings and specifications.

California already has the strictest energy conservation code in the country and compliance with the energy code will ensure compliance with the majority of CALGreen’s requirements.

The building departments will provide most of the verification through the inspection process. Buildings larger than 10,000 sf will have to deal with the commissioning process, which may be the greatest challenge in complying with CALGreen. Third-party inspection/review entities will step in to fill the gaps where the local jurisdictions are not able to provide the service. Additional costs for the owner will undoubltly be incurred.

Only time will determine if the CALGreen Code lives up to the expectations stake holders had for it.

As with any new code, there will be an adjustment period in the beginning that lasts about six months where the design, construction and code enforcement communities get used to the new code and what is expected from each party. This will be no different.

Additional Resources and Tips

1. The state maintains a site dedicated to CALGreen FAQs. Designers and Code Officials should be familiar with that site.

2.  2010 California Green Building Standards Code.

3.  The Building Code Discussions Group (BCDG) a technical forum of building code-related Q&A has a dedicated forum for CALGreen and Green-related topics. News, checklists, resources, technical code-related discussions by experts and more can be found on that site.

4. For the transition period, the design team should be proactive in soliciting input and interpretations from the local jurisdictions regarding their expectations of what is required (forms, documentation, notations and the inspection/verification process) for CALGreen compliance.

As always, Imad and I welcome your comments below.  Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

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For this week’s Guest Post Friday here at Musings, we welcome Mike Collignon.  Mike is a co-founder of the Green Builder Coalition.

From November 2-6, code officials, building officials, industry stakeholders and other interested parties gathered in Phoenix for the final round of hearings on the International Green Construction Code (IgCC). Coming into the hearings, there were two big questions: Would this code pertain to low-rise residential structures, and what effect would GG34 have on the final draft? Once the dust settled, the industry is left with a code that is certainly a step in the right direction. However, its adoptability has to be questioned.

In the spirit of brevity, I won’t go into the 2.5 year saga of low-rise residential’s place within the IgCC. (You can read the unabridged story here.) Suffice to say it was in the original draft, and then it was removed by the ICC Board prior to public version 2.0. A group, including members of the Green Builder® Coalition, United States Green Building Council (USGBC), MC2 Mathis Consulting, the Southern Nevada Water Authority and 3 building officials from across the country, developed a comprehensive public comment to reinstate low-rise residential structures into the code. The comment, which can be downloaded in its entirety here, covered commonly accepted principals of sustainable construction (energy, water, site, materials, IAQ). Testifying in opposition to this comment were representatives from the National Association of Homebuilders (NAHB), American Architectural Manufacturers Association (AAMA), Buildings Owners & Managers Association (BOMA), Window & Door Manufacturers Association (WDMA), and 2 building officials. After hearing testimony, the voting members voted approximately 2-1 to disapprove the motion.Therefore, the IgCC only covers commercial and some high-rise residential structures. It turns a blind eye to low-rise residential, which according to the Energy Information Administration, utilizes more energy than commercial structures. In my opinion, this is an enormous hole in what could have been an incredibly impactful code. One opponent to the comment stated that with the housing market in such a tough spot, we don’t need to increase the cost of construction. But my response is, would the industry rather wait until things are going great, then throw a wrench in the works by having almost everyone retool their business practices to incorporate sustainable techniques, possibly risking another dip in the housing market? Why not get the education now, when supposedly everyone has a lot of down time?

Prior to the hearings, I heard a lot of buzz surrounding GG34 and its desire to reduce the length of the code by 75%. The proponents of this movement were, through a series of proposals in almost every chapter of the code, trying to shrink the document from 220+ pages to 50+ pages. Allegedly, at the core of this movement was a backlash towards the regulation of green. A more marketable way of saying that is GG34’s intent was to simplify the code. After Day 1 of the final action hearings, it certainly seemed like GG34 was going to sweep the IgCC right out the door. The principal members of the GG34 movement only spoke on a handful of proposals. They made their identity and position clear, by their promotional buttons and testimony, respectively. Of the 21 proposals heard on Day 1, 14 were disapproved, which further reduced the length of the code. GG34 Part 1 passed, which took a 2/3 majority, no small feat.

But then, Day 2 came and the tide went out on GG34. So, too, did the attendance. On Day 1, one electronic vote garnered 190 votes. But on Day 2, that number dropped to 130, or almost 32% fewer voting members. I feel that a lot of the voters sympathetic to the GG34 movement made their voice heard on Day 1, but then must have caught a flight back home. Throughout the rest of the week, GG34 Parts 2 through 11 were dismissed. Only GG34 Part 12 would join Part 1 in the victory column. One colleague stated that had all parts of GG34 been considered on Day 1, it would have carried the day… and the green code with it. I can’t disagree with that opinion.

I certainly feel the lowered attendance numbers had a lot to do with the failure of the GG34 movement. On Saturday afternoon, there were 55 votes captured in one electronic vote. In the wee hours of Saturday morning, testimony went past 1:00am CT. There were 34 hearty souls still dedicating their time and opinions to the proposals presented. According to one source, the lowest total seen during the week was 17 voters. However, the attendance numbers alone don’t tell the whole story. Those who voted all week long fully understood the intention of the code, and had a respect and appreciation for those who had devoted the last 2.5 years to its creation. They weren’t about to gut a document that had been reviewed and analyzed by so many.

But now comes the complicated part. Some jurisdictions have already adopted earlier versions of the IgCC. My guess is they will simply update what they’ve already approved. But what about those jurisdictions who voted with the GG34 movement on Day 1? They’re not going to get the drastically reduced code they sought, so will they adopt it at all? What about those jurisdictions who were looking to the ICC for low-rise residential guidance? They, too, are left to contemplate what their next steps will be. Finally, everything that was approved or disapproved in Phoenix is merely a recommendation to the ICC Board. They retain the right to produce whatever they see fit. Will they circumvent their governmental voting members and manipulate the code into something that fits better with their business goals, or adheres to any pre-existing business agreements?

I don’t have any inside knowledge on this, but I’m guessing the last thing ICC wants is a code few adopt. Let’s face it, their business is selling books and educating people on how to enforce the content of those books. The mixed messages heard in Phoenix provide a murky forecast for the IgCC. If you’re a proponent of green building, that’s probably not the verdict you really wanted to see.

As always, Mike and I welcome your comments below.  Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

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Brian L. Hill helps others to achieve more from less through business development, digital media and construction consulting. A fourth generation construction/real estate professional, he shares his passion for pursuing quality in the built environment at AECforensics.com. Always on the search for quality content, if you are a professional in the A/E/C industry, consider writing for AECforensics.com. For more information about Brian, visit BLHill.info.

I’m humbled and honored to once again be able to be invited back to Construction Law Musings for another Guest Post Friday. Last February, I wrote about the role of forensics in the A/E/C industry. In that post, I stated that that the green building movement is clearly a driving force in furthering innovation in construction. But as I concluded, “in order to push the limits of architecture, engineering and construction, one must know what the limits are.” In this post, we are going to look at the role that quality plays in green building, because perhaps the biggest obstacle to true sustainability, is the construction industry itself.

Broken Buildings Aren’t Sustainable

For the hands-down best book on the true state of the construction industry in the U.S., look no further than Barry LePatner’s seminal work, Broken Buildings, Busted Budgets, published by The University of Chicago Press. In the book, LePatner identifies a number of pressing concerns that hinder the ability of the industry to deliver projects consistently on time and under budget. And while I agree with most of his points, I disagree with one of the major tenets of his thesis – which I’ll get to in just a moment. But first, I’d like to share my own perspective.

I have worked for over a decade specifically in construction defect litigation, primarily on behalf of experts providing technical opinions. However, I myself am not an expert (in the legal sense), nor do I have any interest in seeking such designation. I am an independent observer, a documenter of facts. And what I have observed is this – of the literally thousands of buildings I’ve personally investigated, not a single one was built 100% per plans, per specifications, per code, and/or per “industry standards.”

Unfortunately, construction defect litigation hasn’t resulted in a better standard of quality. There are a number of reasons for this:

• Not every stakeholder/owner elects to pursue litigation (the vast majority of defect claims involve residential projects)
• Many legitimate defects are not covered by insurance – so even if legal liability exists, without coverage, there is no point in pursuing a claim (insurance carriers determine standard of care for the construction industry, make no mistake)
• Statutes of limitation/repose limit the time available in which to file a claim
• Most importantly, even when claims are filed and monies are paid to claimants, most defects are not repaired (we used to call these “Suburban lawsuits” because a few months after a case settled, there would be a lot more new Suburbans in the driveways)

Even when building owners do make repairs following a construction defect claim, they rarely are able to or are knowledgeable enough to make all of the necessary repairs. Regardless of issues over liability or insurance coverage, many construction defects do decrease the useful life of various components and assemblies. If you ask a layperson how long a building should be expected to last, you’ll probably hear something from several decades to forever. But those of us in the industry know that a building must only last long enough for the statutes of limitation to expire.

This isn’t helping the reputation of the construction industry. Here’s something to ponder: To my knowledge, no large overextended construction firms have been bailed out by the government, but their insurance carrier may have been. The culture in the A/E/C industry needs to undergo radical change in order to be truly sustainable.

Getting back to LePatner’s book, his solution is that massive consolidation should take place in the construction industry resulting in huge corporations functioning somewhat like an oligarchy. He suggests that we should be like auto workers. Is that what we want?

The current state of the construction industry does not bode well for the green building movement. The desired outcome of green building is to reduce use of nonrenewable resources during the construction and operation/maintenance of a building, as well as to improve the “quality of life” for stakeholders and the general public. Unfortunately, many of the specific green building provisions in a typical program are not covered by standard insurance policies. Without insurance, there is no money to fund repairs to deficient work. That doesn’t mean that there’s no liability, but in the end, the stakeholders are once again going to be left holding the bag.

Who are the stakeholders for green building projects? Besides the owner and end users, the whole point of green building is to build projects that benefit the entire planet. Therefore we are all stakeholders for green building projects.

Quality First

For too long, the mantra in our industry has been, “Safety First.” To get a great perspective on this subject, I suggest reading Mr. Dirty Jobs, Mike Rowe’s take: Safety First or Just in the Top 3. Quality is defined as, “the standard of something as measured against other things of a similar kind; the degree of excellence of something.” In other words, it means doing one’s job right. Part of that means following applicable safety protocols. But as long as safety is the highest bar, we as an industry are doomed.

Quality must become co-equal with safety and green building practices if we are going to create a truly sustainable built environment.

How do we get there? The key to improving construction quality is to take the approach of Trust, But Verify. In the last several months, I’ve had the opportunity to get to know some companies that are offering real innovation in this regard.

At the most basic level is documentation. By thoroughly documenting the construction of a building at regular intervals, companies like Multivista and Geedra are empowering stakeholders and the project team in the pursuit of quality. Photographs of specific locations over time are integrated into an interactive floor plan and/or building model. This is not only beneficial for reducing risk, but provides an incredible resource for facility management following turnover.

While thorough documentation is helpful, quality control practices have evolved to foster better “checks and balances” for construction. Many construction managers, general contractors and subcontractors have developed strong internal quality control programs. Vela Systems takes this even farther by offering a complete suite of software for construction field management. The company is even credited with developing the first construction app for the iPad.

Unfortunately, documentation and quality control are not enough. An internal quality control program is akin to the fox watching the hen house. Additionally, quality control is reactive, whereas quality assurance is proactive. The purpose of a properly implemented third party quality assurance verification program is to “infuse a culture of excellence into every level of a project,” according to Erik Peterson of OAC Management Incorporated. (Erik was also featured on this blog for a guest post entitled, The Two Words No One Wants To Hear.) I recently attended training necessary to become a Certified Quality Assurance Practitioner, per the Quality Assurance Observation (QAO) methodology developed by Peterson. Quality Assurance Observation “is the act of verifying, at predetermined incremental stages, the condition of a particular scope of work, activity, task or assembly, meets and/or exceeds the distinctive characteristics, properties or attributes that have been specified and defined.”

Until the green building movement embraces a Trust, But Verify approach, the mission is doomed to fall below expectations. True sustainability means properly assembled buildings that will exceed not just the statute of limitations (the current standard of performance), but long enough to outlast our current building stock. If we are all stakeholders in green building, shouldn’t someone be making sure that we’re getting what we’re paying for?

Brian and I welcome your comments below.  Also, please subscribe to keep up with this and other Guest Post Friday Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

For this week’s Guest Post Friday here at Musings, we welcome James Kim.  James writes for Austin Real Estate service Homecity.com. HomeCity combines powerful online Austin MLS search technology and other online tools with personalized real estate services to provide clients with the knowledge they need to make the right buying and selling decisions.

From Austin Real Estate to New York City, everyone seems to be raving about a new trend in horticulture: rooftop gardening. These gardens are adding life and color to dim cities and dark roofs. So how can you adopt this trend in your home? Here are some different options for creative gardening.

Why should I invest in a rooftop garden?

Rooftop gardens can:

• Improve air quality
• Insulate buildings
• Support/create local food (which is healthier and fresher)
• Delay water runoff
• Reduce heat-absorbing surfaces, thereby making area cooler
• Bring color to a dull roof!

How is a green roof built?

While there are plenty of different types of roof gardens, they are built in basically the same manner. There are several layers needed to sustain a rooftop garden:

• Waterproof layer – This base layer is added straight to the roof to ensure that the water from the garden will not leak onto the roof.
• Roof membrane – A pond/butyl lining is to be laid over the waterproof layer in a continuous sheet, whenever possible. If this is not possible, overlap the sheets by 20 cm.
• Filter Sheet – This sheet allows moisture to drain off the roof.
• Moisture blanket – This layer ensures that the growing medium retains enough moisture for plant-life. It is possible to use an old blanket or cardboard as your moisture blanket.

Then comes the last layer. . .

• Soils, seeds, and plants – A growing medium should be nice and light. Plant your seeds and voila! Watch your rooftop garden blossom before your eyes.

If the idea of building your own roof garden scares you a bit, there are plenty of professionals out there who now specialize in roof garden installation. Additionally, you don’t have to entirely cover your roof in a garden. There are plenty of “container gardens,” which are easy to install and cost efficient.

What type of plants grow on roofs?

The type of plants for your green roof depends on your taste, climate, and type of roof garden. For and area with large amounts of sunlight, you may opt for hearty shrubs and bushes, fruit trees, junipers, and grasses, which can all withstand strong winds. If you’re roof is a bit sheltered, you should stay away from tall-stemmed, top heavy flowers like lilies or peonies. Alpine and low water plants, like moss, ferns, sedum and sempervivum thrive in rooftop conditions.

Whether you live in suburbia or a cosmopolitan area, a rooftop garden will bring life to this underutilized space. Make your life a little greener by building a green roof!

James and I welcome your comments below.  Also, please subscribe to keep up with this and other Guest Post Friday Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.