As Green Building Grows…Green Litigation Becomes More Likely

As Green Building Grows…Green Litigation Becomes More Likely

On April 17, 2009 Author By Scott Wolfe Jr

This weekend in New Orleans, the American Bar Association’s Construction Forum is holding a national legal conference focused entirely on the green building industry.

The forum is entitled “Talking Green Blues,” and attorneys from across the nation are convening to talk about the legal challenges facing the construction industry in light of the explosion of green building.

The ABA Construction Forum joins the chorus of green building blogs and news stories who cry that as green building litigation is a foregone conclusion.

The Maryland Daily Record just reported on the subject, staying that construction lawyers fear that legal problems will result “from confusion over what ‘green’ means, clumsy government sustainable-construction requirements and the normal growing pains of a relative new sector.”

What are some things that may result in litigation?

  • Litigation arises when there are broken promises.   Green building adds a new category of promises that can be broken.
  • Owners want to “go green” and some aspire for LEED or NHAB accreditation.  However, construction professionals and builders should be weary of promising to achieve a certain accreditation because of the unpredictability of certification.
  • Owners may be interested in green building for energy savings, and if those savings don’t materialize, they may sue the builder, designer or product manufacturer for the disappointing performance.

Unfortunately, there isn’t much green building litigation out there for studying to help owners, designers and contractors safely engage themselves in a green building project.

Over at the Green Building Law Update blog, Chris Cheatham has done a good deal of writing about a 2008 case Shaw Development v. Southern Builders.

This was one of the first examples of green building litigation, arising from a project’s failure to obtain green building tax incentives.   The case winded up settling out of court, leaving many consturction attorneys to wonder what would have happened at trial.

A messy green building litigation like Shaw (but not settled) is coming…it’s only a matter of time.

It’s important to obtain qualified and informed counsel to help minimize the growing risks of building green.

Comment (1)
  1. [...] mentioned in previous posts, as the green building market continues to boom, green litigation and losses becomes more likely.   What if the planned LEED certification is not achieved?  What if the design is not as energy [...]

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