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

Are “Green” Building Designations and Certifications Truly Necessary?

English: U.S. Environmental Protection Agency ...
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As anyone who reads this construction blog on a regular basis knows, I believe that the move to newer sustainable building practices (while bringing about a new or different set of potential risks) is both necessary and laudable. Because of this fact, you may be asking why the headline for today’s post. After all, I am a LEED AP and assisted in the drafting of the LEED/Green Building addendum to the ConsensusDOCS so I must be pro LEED (or any other) certification of buildings. To the extent that such certification encourages best practices and more sustainable building stock, I am pro certification.

However, certification is not a necessary carrot to bring builders around to such practices. As a recent article in EcoHome Magazine (thanks to Todd Hawkins at BuilderFish for alerting me to the article) points out, companies are already moving toward these practices with or without certification and it’s added layer of expense. Economic, air quality, and moral (“its the right thing to do”) factors are pushing executives to such practices. According to EcoHome Magazine, while LEED retains the lions share of green certifications, more and more companies are either using internal standards or trying out other certification programs, including Energy Star.

As a construction lawyer, I see this as a good thing. From a purely societal perspective, it shows an internalization of sustainable building. Companies are pursuing these practices without the necessity of a plaque on the door. For whatever reasons, money and the bottom line being a big one, companies see sustainable construction as a good thing to do.

From a legal perspective, I see more construction contracts using specific scopes of work requiring such practices without the “crutch” of simply calling for a certain level of LEED certification. As I’ve said often, “green” or “LEED Silver” is not a project spec. To the extent that forgoing a third party certification of the building leads to a more careful consideration of the projects specifications and expectations, a move from third party certification could be a good thing and lead to less litigation.

In short, I have absolutely no issue with the USGBC or LEED in general. Without LEED and other rating systems, sustainable construction would not have gained much of the ground that it has. However, given the progress and internalization of such practices, such rating systems are available but unnecessary to reach the goal of a sustainable building stock.

I hope to hear your perspectives. Where am I wrong? Do you agree? Have I forgotten to consider something? Let me know.

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

Are "Green" Building Designations and Certifications Truly Necessary?
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8 Responses to Are “Green” Building Designations and Certifications Truly Necessary?

  1. I think you meant to say – To that extent, IF forgoing a third party certification of the building leads to a more… – I would have to agree with you.
    With that said as the saying goes – numbers don’t lie, but liars figure & I would dare say there might be more litigation & not less. While every system has it’s flaws, I think having a third party certificate sets you apart from those that don’t & in some cases protects the contractor more than not having one.
    Granted I am mainly focuseded on the residential end of the spectrum & actually do said testing, so I could simply be a little biased & not as knowledgeable as to the extent of the issues on larger commercial projects.
    On the plus side, it is great seeing all these companies moving forward & the better codes coming out which now means that homes built now equal or exceed prior ENERGY STAR results

  2. Thanks for checking in Sean. I always appreciate your insight. Please don’t read this as an indictment of LEED as a system. I’ve just heard of and seen contracts that try to use LEED as a specification. Thanks for the comment, and the editorial insight.

    Have a great Thanksgiving.

  3. In the commercial realm, where such certifications are either municipally required or open the door to financial incentives, then Yes they make sense. And, I think in a few cases, it provides a marketing opportunity for the business.

    In residential, I feel the answer currently leans towards No. That may change as we see the Green MLS become more widespread, or we see federal legislation (like the SAVE Act) provide the proper vehicle to value energy efficiency at the closing table. Finally, as someone going through the homebuilding process right now, I don’t need a certificate or plaque to tell me what I already know about my future home. (I will have a HERS rating done, though.)

  4. Thanks Mike. You make a good point about some of the incentives, especially in commercial construction relating to tax incentives and municipally required ratings. My point was that we seem to be headed toward more energy efficiency whether there is a stamp of approval on it or otherwise.

    Thanks for pointing out some of the other factors.

  5. Chris: I agree with you. The voluntary programs have done a lot to raise the bar for construction practices in the U.S. I was simply addressing the question posed in the title of your column.

    I think the bigger impact can be made by introducing sustainability into the codes, or stated another way, raising the floor.

    Both can co-exist.

  6. More Thoughts on “Green” (the Practice, not the Color Building | Construction Law Musings- Richmond, VA) says:

    […] help promote sustainability to a larger group of people?” or even (dare I say it) “Do we need rating systems in the first place?” are now viable because alternatives exist. Second, state legislatures and private owners […]

  7. […] Are “Green” Building Designations and Certifications Truly Necessary? ( […]

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