The new buzzword is “LEED-igation.” This is what happens when there is a legal dispute arising from the perceived failure of a claim made regarding a "green" project to deliver on its promises. Green building litigation is on the rise and all indications are that we are far from seeing the limits of this emerging trend. In a shifting sea of standards, it may be difficult for today's green building to maintain this designation as the threshold is raised ever higher. You have to be very clear about what version of a certification is being met based on the terms of the agreement; a long term project could get caught in limbo amidst rapidly changing community standards.

The U.S. Green Building Council (USGBC) Leadership in Energy and Environmental Design (LEED) certification has become so dominant in North America that is considered virtually to be a de-facto standard for determining green building status. For example, the DC Green Building Act mandates that all new construction for privately owned, non-residential buildings 50,000 square feet or greater within the DC jurisdiction meet LEED standards by January 1, 2012. However, the way USGBC defines LEED does not lend itself to be applied to 100 percent of a market as the DC Green Building Act mandates. As stated in the USGBC LEED Foundations Document [.pdf], "All LEED Rating systems need to achieve comparable stringency to address the top 25% of the particular market." Do you see the problem here?

Despite the enthusiasm with which proponents of green building can bring to promoting these construction projects, great care must be taken with the language used when spoken or written into contracts. Since green building projects can vary so much, there is no 'green template' that can be added to contracts that will cover all the bases. Each project brings with it unique requirements that need to be carefully considered when formulating an agreement. There is no standard definition for what a 'green building' is, and it is dangerous to fall back on simple terms such as 'LEED Certification' to convey this meaning.

If a building contractor guarantees a certain level of performance or certification and the completed project fails to deliver on this guarantee, the question of liability may have to be decided in court. Under the Spearin Doctrine, "...if the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications." But, despite a failure in the commissioning process, or because of defects in design, et cetera, if a builder guarantees a certification this could lead to some legal ambiguity.

Communities hoping to enforce environmental standards may face lawsuits from those that would be economically impacted by imposing those standards. The City of Albuquerque, New Mexico has been placed under a temporary restraining order as a result of action taken by the Air Conditioning, Heating and Refrigeration Institute, preventing the city from implementing a city code that would impose building efficiency standards. As tests like these hit the courts there is emphasis placed on the need for clear communication with stakeholders concerning proposed standards. This seems to be an important key to avoiding such pitfalls with green building. Making sure that the stakeholders, communities, regulators, developers and property owners are on the same page concerning the standards being applied, and that those standards, and the responsibilities of the parties for meeting those standards, are very clearly spelled out before making major commitments to a project. converanet