Is the Sky Actually Falling (on Green Building)?

Originally posted 2011-03-28 09:00:59.

Chicken LittleI have spoken on many occasions here at Construction Law Musings and elsewhere about the risks and rewards for contractors found in sustainable construction.  The rewards were fairly apparent.  New markets, government incentives and the desires of owners to be “green” clearly point toward a need for contractors to get into the sustainable building game.

However, when I was first writing my Eeyore like thoughts most of the thoughts of all us construction attorneys were speculative.  Whether because wholesale “green” construction was relatively new or because the court process was relatively slow, there were not many ways to test if our, shall we say “less optimistic,” predictions were going to come to pass.

For better or worse, several of the more dire predictions have come true.  One major green construction debacle is the Destiny USA litigation.  I cannot possibly set out all of the various issues as well as my friend and colleague Chris Cheatham does in his e-book about the project and its aftermath (.PDF).  I highly recommend this e-book and the posts found at Chris’ Green Building Law Update blog for those of you interested in how the IRS, the USGBC and the Green Bonds Program interact to cause many a pitfall for construction and design professionals.

Another scenario that has always been at the back of my mind is the potential liability found in the engineering aspects of these construction projects.  As I have said before, contractors, subcontractors and engineers are all interacting with new building materials or using tried and true materials in new ways.  This type of innovation is both laudable and risky.  Without years of engineering data or an eye toward the potential future issues, AEC professionals can get caught in a liability bind.

This scenario came to a head in the case of the Chesapeake Bay Foundation building in Montgomery County, MD.  In that case (described well at GBLU), the Foundation wanted “green” building materials in their local headquarters.  The Foundation then used “green” Parallams in the construction of the roof truss system (among other elements of the building) in order to meet its goal.  Despite assurances from the supplier of the parallams, a Weyerhauser subsidiary, that these beams would survive exposure to the elements, the parallams began to rot and the building became potentially unsafe.  Needless to say litigation ensued.

At the risk of sounding like I’m saying “I told you so,” these scenarios are just the sort of scenarios that my colleagues and I have been discussing.  I am far from happy to be among a group of folks that have been shown to be correct.  I am fully behind the move to sustainable building and do not want to see these hopefully isolated incidents put a damper on that laudable movement.  However, these examples show the need to anticipate risks and work with construction attorneys, architects and engineers knowledgeable in the practical and legal aspects of risk management in sustainable building.

On a more optimistic note, and despite the title of this post, I do not believe that the sky is falling.  If anything, these incidents should give us the ability metaphorically get our umbrellas up and anticipate these risks better in the future.  With the added knowledge that these cases provide, we can carefully move forward to a future in construction with a strong sustainable base.

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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12 Responses to Is the Sky Actually Falling (on Green Building)?
  1. George Tracy
    April 4, 2011 | 3:43 PM

    “Green” litigation is about to get a major boost from the International Green Construction Code (IGCC) – (under final review by the International Code Council – for adoption by local municipalities)…please peruse the inclusions at the ICC website, or read my blogs regarding specific sections within the code – you can see them at http://greenhermes1.blogspot.com – under the heading: “The IGCC is totally unnecessary…”
    I’d be very interested in a lawyer’s perspective on the pros and cons of the code.

  2. Christopher G. Hill
    Twitter:
    April 4, 2011 | 5:37 PM

    Thanks for checking in. I’ll check them out.

  3. [...] failure of a contractor to meet its sustainable building promises is one major issue. Another is the collapse of the Chesapeake Bay Foundation HQ in Maryland. All of this sudden liability related activity in the sustainable building area of construction [...]

  4. [...] building philosophies continue to be hot topics within the construction industry. More recently, skeptical speculation regarding green building has begun to catch the industry by storm. As long as the outcome of evolving green developments [...]

  5. [...] that it received based upon the green and job creation promises of the project.  As discussed here and elsewhere, much discussion has focused upon the green building aspects of this debacle.  [...]

  6. A Few Green Building Notes
    May 24, 2011 | 12:52 PM

    [...] that it received based upon the green and job creation promises of the project.  As discussed here and elsewhere, much discussion has focused upon the green building aspects of this debacle.  [...]

  7. Richard Loft
    July 27, 2011 | 4:43 AM

    You have raised an important issue regarding sustainable building which we often do not realize exists. While building my new house in Bristol, I tried to have a loft built with more sustainable materials. However, the builders I engaged were really hesitant, just as you said in your article. I guess it will take some time for this to become more widely accepted and trusted.

  8. [...] profile failures seem to be surfacing.  Media effect or no, a perception could be created that the sky is falling relating to sustainable construction.  As a construction attorney and LEED AP, I cannot help but [...]

  9. Whence Green Building?
    September 26, 2011 | 5:15 PM

    [...] profile failures seem to be surfacing.  Media effect or no, a perception could be created that the sky is falling relating to sustainable construction.  As a construction attorney and LEED AP, I cannot help but [...]

  10. James Monroe
    April 24, 2012 | 11:57 PM

    As a pool builder, I think it is also important for me to take note of the several possible pitfalls in green construction. I have seen many others who are jumping on the green bandwagon, offering “green” pools without actually knowing the long term effects or flaws. Is there a way to learn about how to protect myself from possible liabilities?

  11. [...] 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 [...]

  12. [...] of green building without considering the potential risks.  Thankfully, and despite some of the risk predictions made here (and elsewhere for that matter) there have not been but so many major court cases relating to these [...]

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About Musings

I am a construction lawyer in Richmond, Virginia, a LEED AP, and have been nominated by my peers to Virginia's Legal Elite in Construction Law on multiple occasions. I provide advice and assistance with mechanic's liens, contract review and consulting, occupational safety issues (VOSH and OSHA), and risk management for construction professionals.

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