I am consistently amazed at the disparities in how green building projects are promoted. Some projects make it very clear that they are simply “aiming for” or “registered” in pursuit of LEED certification, while others brand themselves as “green” without any real discussion with respect to what (if any) those sustainable design features might be. You can see a good example of how these inconsistencies may wind up exposing green construction project stakeholders to unanticipated liability in this photo that I took over the summer. It shows sidewalk bridging at one of Manhattan’s highest profile green construction projects. The building in question is seeking a LEED Gold rating from USGBC (it is pre-certified under LEED for Core and Shell, but by no means is it “LEED Gold Certified” yet as claimed by the bridging).
What happens if the ultimate rating that is conferred by USGBC is not Gold but Silver? It is not difficult to imagine a scenario where a tenant sues everyone in the chain- the owner, design professionals, consultants, contractors, and even lenders- if the project fails to reach the level of certification that was advertised. Significantly, we have already heard of claims where tenants sued owners when office space did not perform at the level that the tenant anticipated with respect to indoor air quality and energy efficiency. Owners must therefore be careful about elevating the expectations of potential tenants with respect to a building’s puported green features by accurately presenting a project’s sustainable elements in promotional materials. This obligation should, of course, extend to the project’s construction documents, which should clearly reflect the green design services for which the parties are contracting. Transactional risk management in advance of construction will assist stakeholders in mitigating risk and ensuring that the project achieves specific, targeted measures of green performance- whether it be under a third-party rating system or some other objective as defined by the parties in their contract.