Posts Tagged ‘US Green Building Council’

Green Building Law? Is It Different Than Ordinary "Law?"

On July 14, 2009 Author By Scott Wolfe Jr        

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.

Posted in:     Green Building  /  Tags: , , , ,   /   1 Comment

Green Building and Risk Management

On April 29, 2009 Author By Scott Wolfe Jr        

Just recently, the U.S. Green Building Council published an update to its readers explaining Risk Management issues to its readers, explaining that while green building is growing even in the current U.S. Economy, it presents unknowns that makes it difficult for the industry and insurance underwriters to manage risks.

Here is a snippet:

Underwriting insurance coverage is the art of understanding, assessing, and mitigating risk. Green building has presented challenges to insurance carriers stemming from the fact that green building design and construction is new. New things are tougher to understand from a historical loss perspective, requiring leading insurance carriers to take a proactive approach to understanding the possible ramifications of providing expanded coverage to meet the needs of firms engaged in the green building industry, while anticipating the market demand for these specialty insurance products.

As 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 efficient as planned?

And the questions go on and on.

One question that is still unanswered, as hinted by the USGBC above, is with regard to Risk Management & Insurance.

In December 2008, Wolfe Law Group published an informative article on its Construction Law Monitor titled Green Building Insurance & Limiting Exposure.   The article discusses the need for specialty insurance, the packages available to contractors and the idea of green building performance bonds.

Just last week, ACE USA announced the launch of a Green-Specific Contractors Insurance Program, joining the ranks of companies like Fireman’s Fund, Travelers & AON.

Like everything else in the green building industry, the waters here are untested.   While we can read the policies and the brochures on the policies, it’s too early to determine what types of claims will be paid versus those denied, or the role green building insurance will play – or ever play – in protecting a contractor from professional liability losses.

Posted in:     Insurance  /  Tags: , , , , ,   /   2 Comments

Green Building – The Legal Risks & The Unknown

On December 2, 2008 Author By Scott Wolfe Jr        
Green Building is celebrating a lot of contemporary buzz, but the concept is far from new. In fact, in 2008 the U.S. Green Building Council celebrated its 15 Year Anniversary.


However, the implications of green building certifications and standards have yet to be tested in the courts – and there is some uncertainty as to how "green building litigation" will look. Whether such litigation will exist, though, is not such a mystery, as all sources agree it’s not a matter of if, but when.

Therefore, contractors, architects, engineers, green building suppliers and construction professionals involved in the green building process should be cautious about the potential of green building litigation, and should take precautions to protect itself from liability and exposure in the event of a green building dispute.

What Are The Risks?
Unfortunately, none of the green building disputes in the past fifteen years have gone the distance in litigation, and accordingly, we’re unable to analyze a court’s determination of damages for a breach in a green building contract.

However, there has been much speculation as to the potential damages associated with such a breach.

A green building contract is essentially an agreement to build a structure more energy efficient. There are usually two benefits to the cause: (1) The building’s energy efficiencies makes it less expensive to operate; and (2) The property owner may be entitled to tax credits for building green.

Parties have speculated, therefore, that if a green building contract is breached, or if post-construction the structure is unable to obtain a promised certification, the property owner would seek damages equal to the potential tax credits and the potential energy savings. Presumably, a party could also collect liquidated damages if the substantial completion of a project is delayed as a result of green building failures.

Understanding the Risks to Green Building &
Managing Risks
By analyzing green building disputes and lawsuits that have surfaced, as well as available insurance programs, in the next two posts Wolfe Law Group will discuss potential ways to limit your company’s exposure in the event of a green building dispute.

First, we’ll discuss the availability of green building insurance and bonds.

Second, we’ll discuss the green building litigation that has surfaced, and analyze the claims in those matters to determine how green building contracts and procedures can be improved to limit liability.

Posted in:     Green Building  /  Tags: ,   /   Leave a comment
« Previous Page