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

Whence Green Building?

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It has been a while since I last “mused” on sustainable (or “green”) building. Since my last post on the subject much has been in the news, and most of it negative in some way. While much good has occurred to advance the sustainable building cause, recent news on this front has shed an unnecessarily negative light on the concept.

On the mixed blessing front, the false advertising lawsuit by Mr. Gifford against the USGBC has been dismissed. The case was not, however, dismissed on its merits. The case was dismissed, not because Mr. Gifford did not have a point (that has yet to be decided), but because Mr. Gifford was the wrong person to bring the suit. The technicalities and a more in depth analysis can be found at the Green Building Law Blog authored by my friend Shari Shaprio (@sharishapiro). Because Shari and others have done such a good job in their discussions of this dismissal, I won’t go into any depth here.

While this particular lawsuit was dismissed, it did highlight a potential issue with green building claims. Without going into the particular claims of LEED and the USGBC, the real issue is whether making claims of energy efficiency and other environmental benefits of green construction can lead to problems. The answer, in my mind, is YES. As I’ve stated before, making claims that can’t be substantiated (whether because the data just doesn’t exist yet or these claims are for sales purposes) can do more harm to the cause than good. Making claims that cannot be backed up with facts is worse than never making them in the first place. In short, I do not know if Henry Gifford would have won his lawsuit on its merits, however, I do think that we need to be careful in making claims such as those listed in the lawsuit in an area of construction that does not have the history behind it to create any certainty about these claims.

One other green related story that has dominated the headlines, and which shows the danger of making energy promises you can’t keep, is the Solyndra “scandal.” Agree or disagree with the politics of the story (and please do not turn the comment section here into a political debate, this is not a political blog), Solyndra is instructive because it is another case (like that of Destiny USA) where government money was used to fund a failed “green” enterprise. In a nutshell, the federal government gave a loan to Solyndra, a solar panel manufacturer. Solar panel prices have plummeted and now Solyndra is in bankruptcy. As discussed by my fellow construction lawyer, Chris Cheatham (@chrischeatham) at his Green Building Law Update Soyndra has other implications on green construction. While I agree that there are parallels between Destiny USA and Solyndra, the main issue that I see is the headlong rush to fund anything “green.”

I am fully behind a careful and well thought out move toward sustainability. However, more and more instances of high 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 think that despite the welcome enthusiasm we need to take a breath, slow down and consider the long term consequences. Until we do so, we will continue to see high profile “failures” that overshadow the progress that has been made.

I would love to hear your thoughts. Am I wrong? If so, how?

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.


Whence Green Building?
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13 Responses to Whence Green Building?

  1. Its funny how we only look at and discuss the negative occurrences in green building. But perhaps that is because more than 99% of the projects go over without a significant hitch. Great article, Chris.

  2. Thanks for checking in Doug. I always appreciate your insight. Not only do we only discuss the negative, we need to be aware of this fact when moving forward with certain green building projects and ideas. Because of this effect (i. e. focus on negative news) those who push forward in this space need to be extra careful when taking new steps.

  3. If you perceive the “sky is falling” on sustainability today, wait until tomorrow – when the IGCC (International Green Construction Code) codifies LEED at the local level…the promise of “green” will be required to get a building permit – construction lawyers should be licking their chops at the possibilities – as an Architect, I’m expecting to lick my wounds…

  4. George:

    As someone who is a co-signor with the USGBC (and MC2 Consulting) on a public comment, I can tell you our efforts are not trying to codify LEED. In fact, on more than one occasion, the USGBC rep I have been working with has told me, “LEED shouldn’t be in the IGCC. LEED is an above-code program.”

    If you want to be upset about a green building program possibly being codified, take a look at what the Amer. Wood Council, Nat. Multi-Housing Council and NAHB are trying to do. They’re trying to get NAHBGreen, I mean, the National Green Building Standard, back into the IGCC. (This after lobbying the ICC Board to remove it back in October 2010.)

    I’ll be posting the entire 15+ month story on our site next week. It’s quite a tale.

  5. I look forward to the tale. Thanks for checking in. Unfortunately, some code writers (state, federal and local) see LEED and other private rating services as easy ways to get to “green” and may use them anyway.

  6. Mike and Christopher…

    I thoroughly enjoy following Construction Law Musings, Green Building Law (blog), ICC releases, AIA blogs, etc…I’ve also extensively researched and written numerous blogs and articles regarding how the IGCC is “totally unnecessary”, and frankly, it is! – as a “co-signer” on public comment, you (Mike) are correct that LEED was not taken verbatim and codified; however, being a LEED-Project-Administrator, I find “practically”, that essentially and effectively, LEED is being codified in the IGCC…as a practicing architect, my task is to determine how to fold the IGCC into my basic services…I see the entire issue as an open door for more and more litigation – primarily from clients who perceive architects are under-performing because their buildings aren’t achieving the “permitted” results (follow-up performance reports are mandatory)…my insurance carrier is scratching his head, my standard-of-care is threatening to expand, and my professional society (AIA) is waving the flag of “sustainability”…give me a break! (sorry, Christopher, for raining on your blog)

  7. George:

    Could you expound upon your statement: “… the IGCC is “totally unnecessary”, and frankly, it is!”

    I’d love to hear your opinion. Thanks.

  8. Mike…

    Rather than reduce Christopher’s available blog-space, my thesis is available in specific detail on my own blog:

    I discuss a number of topics (long-windedly) ranging from who profits, who loses, standard of care changes, legal and insurance problems, etc. etc. etc…

    As a sidebar, since the last blog entry was at the end of April (prior to the IGCC Dallas meetings, I’ve sucombed to the reality that the IGCC WILL be “passed”, and while I’m moving on to local adoption-battles, I’m formulating means and methods for incorporating the code-requirements into my practice – working with my E/O insurance carrier and E/O attorney to resolve service-offerings that we should avoid and offer as a separate consultant…

    More on those efforts in the future…

    Again, sorry Christopher for taking up your space…however, you might weigh-in on some of my concerns since the IGCC will have definite impacts on construction activities and liability…my chief concern is how so many design and construction professionals will be blind-sided by what’s in this “code”…frankly, I intend for my firm to be prepared – and, yes, while preparing for the worst, I’ll continue the (local) fight against the IGCC, because it IS totally unnecessary…

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