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

Did the 4th Circuit “Tarnish” Sustainable Construction in the CBF Case?

English: The Philip Merrill Environmental Cent...
English: The Philip Merrill Environmental Center -Headquarters for the Chesapeake Bay Foundation. (Photo credit: Wikipedia)

About a week ago, the 4th Circuit Court of Appeals reversed and remanded the Chesapeake Bay Foundation’s “parallam” lawsuit. Since that unpublished ruling on procedural grounds, much discussion has ensued. One particularly interesting headline, found at the well respected Greed Building Law Update, states Litigation Over First Ever LEED Platinum Building Tarnishes Green Building. After describing the reversal, the GBLU post then states its opinion that architects and engineers will avoid the use of new untested products that may not do the job required of them when designing buildings. From this premise, the author wistfully discusses the fact that this could cause an issue with “green” building.

Does this case actually “tarnish” sustainable building, or does it just “tarnish” the use of materials that may not last over the long haul, “green” or otherwise? Is it the fact that these materials are considered sustainable or the fact that they simply failed and were the wrong choice of material that the parties will be arguing about on remand? I believe it’s more the latter than the former.

I have discussed the issues with the headlong charge toward the use of new materials and building methods in the name of sustainable building on occasion here at Musings. Also, and as pointed out in the comments to my post last Monday, this case is more about the use of inappropriate materials that failed at their intended purpose regardless of the label placed on those materials. Even among the subset of “sustainable” materials, designers have options and should be aware of the potential issues with the materials that they specify.

Like those at GBLU, and as a construction attorney interested in seeing construction flourish, I hope that this case does not “tarnish” sustainable construction in a way that slows the careful adoption of new and “green” means and methods of building. However, I don’t believe that this particular case will do much in the way of slowing this progress.

Agree? Disagree? Think I’m nuts? I’d love to hear from you.

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

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7 Responses to Did the 4th Circuit “Tarnish” Sustainable Construction in the CBF Case?

  1. Great points, Chris.

    For me, the issue is that if the organization’s claims and analysis are valid, a significant amount of the Parallam product will require removal.

    If the structural integrity of the Parallams has been compromised, as claimed (they state in their complaint that the building poses a serious risk to life-safety), reusing these materials would be impossible. Due to the presence of the PolyClear, I would doubt that the materials could be adequately recycled. In other words, a lot of material is headed to the landfill.

    With an estimated cost of repair nearly equal to the original cost of construction, I fail to see how this project can be deemed sustainable by anyone’s definition.

    Does that mean that “green” buildings are bad and that new materials/products should be avoided? No, of course not.

    It simply means, as you have repeatedly admonished the industry, that we need to keep both eyes open when taking on potentially risky (or riskier) projects. Measure twice, cut once.

    How the USGBC handles this is another issue altogether, though. CBF shows the fallacy that a LEED-certified (and in this case, at the Platinum level) building is a better quality building.

  2. Mr. Hill, thank you for producing such an interesting and well curated blog. I am glad to have found it.

    Your point in this post is spot on. The 4th Circuit probably did much more to help than to harm the cause for sustainable building by refusing to give a pass to use of unsuitable materials simply because they are “sustainable” or, as the GBLU post suggests, untested. The true chilling effect on “green” materials is more likely to come from lowering the bar for their use. If “green” materials become synonymous with “poor quality” fewer projects will approve their use. To increase the use of “sustainable” products their reliability should be kept on par with more traditional alternatives.

  3. I agree Brian. I hope that this doesn’t cause issues for sustainable building but does remind us all that safety and quality are necessary regardless of the material used.

  4. Chris, I commented on your previous post regarding this project… and with your indulgence will respond to your thought-provoking write-up above.

    For the most part, issues you raise are not really ‘new’. They do take on a new twist when taken in the context of our industry’s rush to compete for the assortment of labels being sought out by developers, designers and others. A full discussion of this and inter-related topics clearly is impossible in this format, so I offer a few bullets for consideration – and possibly future blogs by you or others.

    1. You are correct – certifications/labels achieved do not have any relationship to overall quality. Going further, the achieved certifications/labels do not prove a project will perform better, over its life expectancy, than projects that do not have those designations. Much of the improvement in building performance in recent decades is the natural result of improving technology and products (with or without labels). Some early benchmark studies have shown little or no ‘betterment’ to contemporary building stocks due to the incorporation of Green standards/codes/certifications… and in some cases the reverse has been demonstrated. USGBC and other organizations are (let’s be honest) profit-making entities that came up with a brilliant money-making strategy (including the entire cottage industry of credentials/testing, publications, certifications, etc.), and have been successful in getting governments to adopt privately-written building codes based on much hype but little proven science (a bad example of how to create law).

    2. A building that is flawed and must be remediated (work done twice, at additional expense and duplicate use of materials) clearly cannot be considered to have met its touted objectives. The flaws can be design-related, or the result of incorporation of materials/systems with which contractors have no prior experience. Whichever is the case, risks associated with design features, materials and systems that are not time-tested are real… and are shared by all players.

    3. Designers and builders that knowingly incorporate untested, unproven, unique, innovative or off-label materials or techniques into their projects are (despite good intentions) risking wholesale failures – and serious unintended consequences. When just a whipper-snapper I was taught that the designer should “never go to school on the client’s nickel”. That adage should still apply, but I fear it is no longer well appreciated – it is tossed aside in favor of rushing to be the first in the neighborhood to ‘get certified’… obtain the highest level of designation, and even be zero-energy-using. We have yet to understand and appreciate the long term consequences of what we are doing short term. If a building initially uses less energy or uses truly sustainable materials, but requires more maintenance, early equipment repair, more frequent restoration, or overall reduced life expectancy, then have we really gained anything bottom line?

    4. Designers and builders who rely completely on representations of manufacturers (instead of actual long-term in-use proven products and techniques) are increasing risks for themselves and their clients. This would extend to ‘recommended’ application/installation techniques (which manufacturers offer up but do not necessarily stand behind once there is a problem in the field). Lastly, while some manufacturer reps know their stuff, many are salesmen with little real technical expertise (but are nevertheless happy to make unqualified claims of superiority and suitability, almost regardless of the specific design/use being contemplated). Because designers don’t have the time and expertise to independently research every product (there could be thousands in a large project), they are accepting such claims on faith.

    5. On the ‘flip side’ of the equation designers must devote more unbillable hours to education and obtaining credentials than in the past. They must also spend more hours designing buildings that are more complex -technologically – than older counterparts. They are expected to produce projects that come in at the same budget/SF as previously (or close to it). Since designers historically are paid fees linked to the cost of construction, and are competition-sensitive, they are hard-pressed to seek greater fees for the more difficult and time-consuming green designs their clients want. Without ‘going deep’ into this topic you can see where I am going. Designers are squeezed more than ever and have to save hours somewhere… and as a forensic architect I see what happens when man-hours are not ‘increased’ commensurate with the more complex buildings being designed. Builders are in a bit of the same pickle. When lack of experience in new systems/materials combines with fewer man-hours, the results are predictable/foreseeable.

    6. As I mentioned in the older blog thread, the problems alleged at this particular project (use of materials without an adequate track records and without independent research and verification, plus contractors not adequately familiar based on personal experience) really are not ‘green’ problems. This type of failure is nothing new. In my experience it is also not confined to small design firms and small contractors. I have seen the identical type of issue arise on projects involving top firms. It is most often the consequence of poor (or non-existent) supervision/tutelage, over-reliance on personnel that lack gray hair, and/or plan/spec authors with no actual understanding of the nuts and bolts of the work they are designing (their chief qualification being good computer skills).

    I could go on… but fear I have already overstepped my ‘quota’. I’d love to hear the additional points/perspectives of others on this one.

  5. Thanks to all of you for the insights. I appreciate the discussion. My sincere hope is that we can merge “sustainable” and “well built” into our building stock so that these discussions don’t have to happen in the future.

  6. Christopher,

    It certainly didn’t have to wait for this court case for “green” buildings to be tarnished. Howard is right to point out the core problems that have been known for a long time but are ignored by all those that are so deeply attached to “good intentions” as a standard excuse for failures of content, form, and process. As an attorney, I would think this is the easiest thing to see. But of course many attorneys have become advocates for green and have given up on objective and neutral assessment of things like cost-benefit ratios, scientific integrity, rent-seeking, misrepresentations by clients, and moralistic mumbo jumbo.

    Take for example the rather silly work of the Healthy Building Network in terms of science or risk and yet have become a vital force in the field; or the incoherency of the precautionary principle as a mechanism for demonizing all kinds of things; or take for example the totally silly concept that doing a hazard only analysis is more “rigorous” than a proper risk analysis that accounts for exposure in both dose, duration and accounting for hormesis in the dose response curve; or that client design firms should send letters to manufacturers threatening them with de-selection of their product for not fulfilling arbitrarily selected lists. The examples of the lack of intellectual integrity and counterproductive policy choices are many and one would have thought fatal. But this is not an area where skepticism or sound policy has a place. Instead it is all about proper “messaging” and “saving the babies” overtly and black-box machinations in private. The politicizing of green is now complete. For some this is success, for others, this is tarnished indeed. See for example the Well Building Standard run by the Delos which has on its Board Deepak Chopra and Leonardo DiCaprio. It would be funny if it wasn’t so sad.

    Intellectual integrity is usually the first thing to go in these pseudo-religious activist campaigns. It is only necessary to have good intentions in the right hand while the left hand takes all the monies.

    The vast number of those involved in this area who are not believers already know that much of what passes for “green” or “sustainable” is questionable at best and venal at worst. The now famous article in ASHRAE about the CBF building by the forensic architects Wiss Janney Elstner pointed out long ago the poor design that had little to do with the parallam coating. The fact that the suit is about this particular attribute says a great deal more about the nature of the legal tactics than anything about the “green” issues in the CBF.

    Much higher standards are needed in the discussions around green building but it is unlikely to happen anytime soon. Green buildings have metrics on them like the invented metrics of “happiness” or “corporate social responsibility.” If you torture the methodology and the data along with re-defining the postulates, you can make anything seem like a good idea.

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