Andrew Burr of the CoStar Group recently listed his top ten green building stories from 2008. I thought a glaring omission from his compilation was his failure to include any discussion of either of the green building litigations that surfaced during the course of the year. Shaw Development v. Southern Builders and AHRI et al. v. City of Albuquerque may ultimately become seminal green building law cases, so I was disappointed that Burr’s list focused on mostly cosmetic, feel-good stories like “the LEED economy” and “green building trumps recession,” the latter of which has most certainly not been true in New York City over the past couple of months as a number of green projects have stalled or been canceled outright.
The importance of Shaw cannot be overstated; the use of form contracts on green projects is a recipe for disaster, particularly in jurisdictions where green building legislation- in the form of either a mandate or incentive – may apply. AHRI may ultimately have even broader repercussions for the industry, as Judge Vazquez’ decision, grounded in federal preemption doctrine- and the plaintiffs’ willingness to bring the lawsuit in the first place – may end up spurring other legal challenges to state- and local-level green building legislation in 2009, particularly if the federal government takes a more proactive regulatory role once Barack Obama takes office. Here’s hoping that 2009 commands a much more robust discussion of the liability aspects of building green amongst industry stakeholders.
- Top 10 Green Building News Stories of 2008 (CoStar)
- Anatomy of America’s First Green Building Litigation (gbNYC)
- District Judge Grants Injunction in AHRI (gbNYC)