Green Building is all the rage in the United States. Whether it be a LEED project, or just a promise to the property owner to build or make a building more efficient and sustainable, as 2010 passes onto 2011, those in the construction industry are quite likely to run into projects with at least some green elements.

When bidding, contracting and working on these projects, it’s important to know what might go wrong. After all, if you have no idea what things can go wrong, you have no way to prepare for them (or charge for the extra risk).

There’s no way to enumerate all of the risks…but here are a few to get you thinking about it:

1) Vegetative Roofing: In some areas, these so-called “green roofs” are becoming popular. The most ambitious green roof program is likely found in Portland, which we’ve discussed in a previous post. Essentially, vegetation is planted on the roof of a building to better insulate it, reduce the heat island effect in the area, and better control water runoff. The downside? Well, it’s quite a bit heavier than a standard roof, and the construction and design of the structure should accommodate the extra weight.

2) Rainwater Runoff: Plan on channeling rainwater into storing containers to use within the property as waste water? Be sure to contract with someone with experience, because the control of rainwater is different than the disposing of it through ordinary guttering systems.

3) Greenwashing: It’s popular to be green, and there’s an absence of real regulation prohibiting businesses from advertising its products and services as “green” – which, really, is undefined. So, when incorporating a service or product into your technology, make sure you select vendors, products, services and the like that will live up to their marketing.

4) New, Untested Technologies: Even the stuff that isn’t fraudulently labeled green may still present problems, as many technologies advertised as green may simply not perform as expected, since the technologies and products are new and haven’t been tested over time. The lesson? Keep your vendors on the hook for promises made by their products, and be cautious about relaying promises that are uncertain.

5) Human Interference: Green buildings and green technologies are not insulated from human intervention. Especially considering energy performance, the human factor can be great – as humans are the ones that will control energy use (such as using more than the allocated energy amounts), and generally doing things that can affect energy use (covering windows, for example) .

6) Certification Problems: Rating and certification system (like LEED) are not easy to guarantee. The certification decision is left to a third party, certification can be taken away, and certification can be challenged. Don’t be too concerned – many projects work toward a certification and get it. But know the road ahead.

Related articles

• Is Failure To Achieve LEED Certification Consequential Damages? (constructionlawmonitor.com)

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.

As the green building movement gains momentum in Louisiana, and across the nation, many have debated whether going LEED (or just going green) is worth the increased project costs.

While it certainly won’t put an end to the debate, a recent announcement out of Seattle-based Starbucks is interesting. The coffee giant (with recent financial woes) announced the opening of a new LEED location in Seattle’s Pike Place Market, and very aggressive goals to get LEED certifications across the country, at its headquarters, and even at its roasting facilities.

What does this mean for green building in Louisiana?

It’s really too soon to say, but here are some possibilities:

(1) Louisiana Starbucks locations may be among those getting LEED certification in the next few years;

(2) The move may influence other retail chains to build green;

(3) The committmenet from such a retail giant adds to the nation’s and Louisiana’s general green momentum.

It will be interesting to watch…but once again, as the demand for green building products and services increases, so will the supply. From the supply perspective (architects, contractors, etc.), it’s important to ensure that your company is providing the services it promises, and protects itself from energy performance milestones that may be out of their control.