Stephen Del Percio, Lloyd Alter, Shari Shapiro, Chris Cheatham
I follow the three leading bloggers on green building law closely; they make complicated and important issues affecting green building comprehensible. When I saw that they were all on a panel together at Greenbuild, I had to attend and meet them in person, and hear their responses to the question "What's the Next Big Challenge in Green Building Law?" Although all three are great at making complex issues understandable to non-legal types, I still could not understand my notes well enough to do a post, so I asked them all to look into their crystal ball and send me their thoughts.
Chris Cheatham is the managing partner of Cheatham Consulting, LLC, providing consulting and dispute resolution services related to construction, surety, and green building projects. Chris is a LEED Accredited Professional and green building authority who frequently speaks to groups and associations and is quoted in the press regarding these issues. He has worked with attorneys, contractors, sureties, architects, engineers, and owners regarding green building growth, and risk mitigation strategies. Chris is also the publisher of the widely-read Green Building Law Update.
As I sat on the stage at Greenbuild for our inaugural Legal Forum, it dawned on me that a fundamental shift has occurred in the green building industry. Owners, contractors and design professionals are now using the LEED rating system as a tool to resolve negotiations and disputes. I believe this trend will continue to intensify in 2011 and we will shortly see major LEEDigation (i.e. disputes surrounding LEED certification). Why do I say this?
Sometime around 2007 or 2008, the LEED rating system went mainstream. Now, major corporations and financial institutions are demanding LEED certification for all of their buildings. These companies are seeking LEED certification because they see a business opportunity; it is now profitable to build green. Companies expect LEED buildings to save energy and water, sell for more money and rent for higher prices.
Now that profit-driven motives are involved with the push to build green, it will be easier for plaintiffs in a lawsuit to claim monetary damages if a project fails to achieve LEED certification. We have already seen numerous instances of initial LEEDigation. From Henry Gifford's lawsuit against the US Green Building Council, to litigation and bid protests surrounding the responsibility of various parties to obtain LEED certification, we have seen that parties are more willing to use the LEED rating system as leverage to resolve disputes. As we continue down this road, expect the instances of LEEDigation to only increase.
More at Green Building Law Update
More Chris Cheatham in TreeHugger:
Architect Alert: Waxman-Markey Has a Big Impact on Building
Stephen Del Percio assists clients in the design, construction and real estate industries on matters ranging from construction contract and corporate document drafting to litigation. He also provides advice with respect to the emerging legal and regulatory issues associated with green building and is a LEED Accredited Professional. He launched Green Real Estate Law Journal in November of 2008 in an effort to create a space for a more robust discussion of many of the emerging legal issues associated with green building and real estate.
Trends to Watch in 2011 - Green Building Legal Issues
- For all of the discussion about the legal implications of legislating green, there have been surprisingly few challenges from the private sector. However, as governments across the country continue to face budget shortfalls and other financial pressures, private actors will more closely scrutinize - and oppose - existing state- and local-level green building legislation. The AHRI and BIAW litigations in New Mexico and Washington, respectively, could be just the beginning for a host of challenges on a number of grounds in addition to preemption.
- Reports of more lawsuits against green building developers. The Riverhouse litigation in Battery Park City (Gidumal v. Site 16/17 Development LLC et al.) suggests that many owners and landlords (or their attorneys) have failed to understand the intricacies of the LEED system and made improper representations about their projects' green features in offering plans, leases, and other legal documents. At least one other similar suit to Gidumal (in Canada) has been filed, and I expect that we will hear reports of other, similar suits by tenants and purchasers.
- State and local governments will increasingly recognize the limitations of LEED as a legislative tool and begin to incorporate the International Code Council's Green Construction Code - which now includes Standard 189P as a compliance path - into building codes. Simultaneously, they will follow the lead of municipalities like New York City and begin to require building performance benchmarking and energy consumption disclosure in order to build a body of performance data to inform next-generation green building legislation.
More at Green Real Estate Law Journal
More Stephen Del Percio in TreeHugger:
LEED-Bashing Pile-On Continues On New Fronts
Waxman-Markey Targets For Buildings Are Exactly What Builders Say are Impossible
GreenBuild: On Blogging About Green Building
Shari Shapiro is an attorney and LEED Accredited Professional. Ms. Shapiro focuses her practice on Green Building Law, which includes sustainable project financing, regulatory drafting, land use approvals, contracts, and conflict resolution. Ms. Shapiro is the Sustainability Coordinator for Obermayer's Sustainability Initiative.
When I look into my crystal ball for 2011 in green building law and policy, I see the following:
1. Local government in the lead--With the failure of cap-and-trade and the new Republican administration in the House, little green building and renewable energy leadership is likely to come from the federal level. The states and local governments are likely to fill in the void, but their budget issues may make green building laws difficult to sell. For example, incentive programs would require an investment of tax dollars which are not available, and prescriptive regulations require resources for drafting the regulations and training code officials.
2. IGCC becomes more prevelant--Since the IGCC fits with the other I-codes most state and local governments have adopted, to the extent state and local governments take a hand in legislating green, they may look to the International Green Construction Code to ease regulatory hassles.
3. Popular mandates on green--Proposition 23 threatened to derail California's climate change regulations by popular mandate. Although Prop. 23 did not succeed, look for more popular mandates on green building, renewable energy and climate change legislation at the state level. The basis for most of these ballot initiatives will be faux-economics--regulating green will prevent economic growth. For example, Prop. 23 proposed to suspend California's cap-and-trade program until unemployment level fell below 5.5 percent for four consecutive quarters. I call this faux-economics, because this level of unemployment has only been accomplished three times in the past 30 years, so I suspect green regulations have little to do with causing or preventing it from happening again.
4. More direct challenges to state and local laws--In addition to popular mandates, I predict there will be more direct challenges to state and local green regulations like those raised against the City of Albuquerque in AHRI v. City of Albuquerque and the State of Washington in BIA v. Washington.
More at Green Building Law
More Shari Shapiro in TreeHugger:
Pink is the New Green
Jargon Watch: Greenbashing
The Problems with Green Sprawl
What is the Cause of "Stinky Situation" With Waterless Urinals?