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

LEEDigation: A Different Take

Sara Sweeney, Ecovision, LLCThis weeks Guest Post Friday at Musings is a real treat. Sara Sweeney is a registered architect, LEED AP and GreenFaith Fellow in religious environmental leadership. Her 18-year architectural career reflects her passion and commitment to sustainable building design and stewardship of our natural environment. She is the founder of EcoVision LLC, a solutions-based research and consulting firm, grounded in sustainable design practices, environmental stewardship, and building science.


Every so often I come across a word that drives me nuts. A few years ago it was ‘Dude.’ Lately, it is ‘LEEDigation.’ It’s a new term to “describe green building litigation” coined by Chris Cheatham, a fine person and very knowledgeable attorney in construction law and a LEED AP as well. Per his definition, LEEDigation “could involve disputes arising from green building certification, could arise if a project fails to obtain government incentives or satisfy mandates for green building construction, or could simply result from improperly designed or constructed green building strategies. It all makes sense. So why does it drive me nuts?

Round Peg. Square Hole.

Although I fully understand why the term was coined, such a term keeps us in flat world, that is, the world of conventional design and construction. Designing and building to LEED standards, or rather, just designing and building sustainably in general, whether to meet a third party standard or not, is a different way than what we have been used to. Period. Whereas our conventional way is focused on first costs, and sees the building more as a commodity than the human imprint and legacy on Earth, sustainable design and building is a process which, at its best, considers the economic impacts of NOT building responsibly. It is a more holistic way of building and balances long-term costs and implications with short term costs.

Yet in many ways we as a building industry are trying to fit sustainable building -a round peg, into our current square hole conventional way. It what we’re used to, and generally, we don’t like change. So somehow, if we push hard enough, we’ll make it fit. And USGBC – with all due respect, quite frankly doesn’t help with their consistent messaging that “it doesn’t cost more to build green.” Unless the design team engages in a more integrated design process early on and sets environmental benchmarks early on however, it does.

Fasten you seatbelts, it’s going to be a bumpy ride.

Earth is in crises. Really, we are in crises because in reality, Earth will survive without us just fine. Buildings require huge amounts of resources to be built and operated. They are the single biggest source of CO2 emissions into our atmosphere. Focusing on LEEDigation keeps us away from seeing the bigger picture of this crisis, as well as what sustainable building and third-party certification systems, like LEED and Green Globes, can accomplish towards reducing those emissions, and educating us at a holistic level about environmental stewardship. It also has the capacity to steer those who might otherwise build sustainably away from doing so, for fear of LEEDigation. No one said building sustainably was easy.

If LEEDigation does continue to grow however, I predict that 25 years from now, it won’t mean a darn thing. In fact, many of us will look back in hindsight at our collective lack of forethought and wish we had taken the risk into the somewhat greater unknown of building sustainably. We’ll feel we wasted a lot of time in LEEDigation for naught.

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8 Responses to LEEDigation: A Different Take

  1. Thanks for the interesting and provocative take on LEEDigation, I'm sure Chris will have something to say.

  2. This is such a great post and I do have some thoughts.

    First, I have definitely thought about my, and other attorneys, role in green building. Here is a post I wrote on this specific issue:

    If I and other attorneys ignore this issue now, it has the potential to be much worse. If contracts are not modified to address green building risks, the potential for LEEDigation increases.

    Here is my big concern: if I don't talk about these issues, they will blow up and drag the green building industry down.

    Can you see this happening?

  3. I agree. While 25 years from now this may all be a blur, if we don't address it now, the issues could take down all the good that sustainable building can do. Think about LEEDigation can certainly allow us as attorneys to keep some of this from happening by anticipating the issues. I'm glad that your newly coined term has sparked this discussion. If you want to respond with a guest post, let me know.

  4. Your views are noble and if we all followed them we would be better off. The reality is that with limited exceptions cost, including litigation costs and losses, is a major factor for those who build or rehab. We need to be realistic in working with clients, understand how people act and then be pro-active in counseling them and minimizing the drag from litigation.

  5. Thanks Doug. I agree. Being pro-active in drafting of documents, and proper counseling can lower costs in a way that will let sustainability grow. Too much cost of litigation and fear of that cost can only hamper things.

  6. Thanks Chris H., Chris C. and Doug for your comments.

    Chris C: I am looking forward to continuing this discussion. I think it is very interesting to look at the green building realm from the law/litigation perspective and from a environmental holistic view -which I also realize you are trying to incorporate as well! We are in the midst an exciting paradigm shift, and the contracts need to keep pace. In reality, contacts probably need to be ahead of the pace. I think if "you and I" (using this term generally to mean all of us lawyers, architects, green building consultants, contractors and etc.) continue these discussions and work together towards making sustainable building the conventional way with as smooth a ride as possible, we will achieved something great.

    Doug: Thanks for your comment as well. I think the key is to balance being realistic with some idealism/noble views from all of us. I think in ways, we all can seize the moral high ground to a certain extent. We do have alot at stake. And although litigation will indeed loom as we navigate this sustainable building paradigm shift, again, "you and I" working together will achieve quite alot in the long run.

    Finally, I think the work that all of you are doing -and I admit I know Chris and Chris better, (at least as best one can know someone through Twitter!) with respect to helping us all navigate this paradigm shift is wonderful. This is not easy in some ways for any of us -the rules have changed and we are to a certain extent making new rules as we go along. If we can minimize any resulting litigation it will be all the better. So thank you for what you all are doing.


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