There are a growing number of construction attorneys getting certified in green building professional courses and touting themselves as “green litigation attorneys.” Our friends over at the Best Practices Construction Law blog just posted an interesting blog article about whether there is a difference between “green building law” and ordinary run-of-the-mill “law.”
The article is titled: Green Building for Attorneys: Is It Merely Hoopla? (spoiler: author concludes that it is not merely hoopla). The article discusses another blog post on the subject from LAW/ARK: The Real Green Goblin – Emerging Legal Liability for Green Design Professionals and Contractors (Part 1).
Since we’re writing this article on the “Louisiana Green Building Law Blog,” you likely know where we come down on this issue. And we clearly have a dog in the fight. But our reasons might surprise you.
Here is the argument
Here is a quote from the LAW/ARK post, in support of the position that “green building law is just law:”
The bad news is that attorneys, especially those already practicing in construction law, will soon realize that aside from green design and construction’s sometimes specialized and occasionally ill-defined vernacular, there’s no real novelty in the types of claims that might arise. No new frontiers of jurisprudence need be explored – a leaky green roof is still a leaky roof – whether it also requires regular mowing and landscape maintenance changes little from a legal perspective.
In response, Matt DeVries at the Best Practices Construction Law blog says that while it may be correct that there is no novelty to the types of claims that may arise in green construction disputes:
The novelty in the green building industry is the new set of standards that will inevitably become part of the legal dispute. In other words, while ‘a leaky green roof is still a leaky roof’…there will be new risk to be allocated, different types of damages lost, additional players involved, varied proof required, and yes, perhaps a novel cause of action alleged because that leaky green roof system failed.
Here is our voice
There is something important that is not discussed in LAW/ARK’s post about green building law: the underlying claims themselves.
The leaky roof analogy is actually not spot-on, because if the roof was leaking, the claim wouldn’t necessarily be a “green building claim.” It would be an ordinary claim. A green building claim would occur when the green roof didn’t perform as it was anticipated from an energy savings or environmental perspective. Or, if the green roof didn’t meet the standards of the Green Building Council or other accreditation organization, and the property lost a valuable certification.
Of course it all boils down to unfulfilled expectations, but what separates a green building attorney from an ordinary construction attorney is that they have a true understanding of the expectations. It’s what Matt DeVries points out: understanding the “new risk,” “different types of damages lost, additional players invovled, varied proof required,” and more.
After all, what really separates a construction attorney from an ordinary business attorney? Breach of an ordinary contract and breach of a construction contract involve the same claims…but what separates the construction attorney is her familiarity with the construction industry, and the types of damages, players, risks and claims that frequently arise.
The same must be said for Green Building counselors. It’s not a new body of law, it’s just a new set of situations.