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At Greenbuild, USGBC to Ask About “Next Big Challenge” in Green Building Law

Greenbuild 2010 Chicago

On Thursday, November 18, I will sit on a panel at USGBC’s 2010 Legal Forum at Greenbuild. “The Legal Challenges Posed by Green Building” will feature three, one-hour panels, two of which are titled “Current Green Building Statutory & Policy Issues” and “Practical Practice Pointers.” I will sit on the third panel, “What’s the Next Big Challenge in Green Building Law?” with Chris Cheatham and moderator Shari Shapiro. I anticipate a robust discussion of Henry Gifford’s class action lawsuit (which, in some ways, I think has more merit than does Ms. Shapiro) as well as the future of “LEEDigation” (which I believe is manifesting itself in a very different context than does Mr. Cheatham). I mention this not to take any sort of peremptory shots at my colleagues, but rather to suggest that the panel should be a spirited one, so I hope you will consider attending if you will be at Greenbuild, even if you do not need the CLE credit.

I also think it is worth pointing out that – two years ago, in my description of what I thought was “good,” “bad,” and “ugly,” about Greenbuild 2008 over at gbNYC, I noted that there was very little discussion at the conference about legal issues arising out of sustainable design and green building. I wrote:

The Ugly: No Discussion of Liability and Risk Management Issues

Unless I missed something, not one panel discussion or education session featured any presentations regarding the risk management aspects of building green. This was an enormous Greenbuild shortcoming, in my opinion. As you may know, I practice construction and real estate law and the number of lawsuits that our group has seen in the last few months since the Wall Street meltdown has increased significantly. Litigation that might not have been necessary as recently as the summer may now mean the difference between turning a profit on a job or a development and walking away in the red. A stakeholder that, in years past, would not have asserted a claim arising out of a green project because of the fear of being branded the bad guy might not care anymore if the dollars aren’t adding up. For these reasons, I believe that failing to educate our industry about emerging green building risks is a huge mistake, particularly as we head into what will likely continue to be a particularly brutal economy through 2009.

Also in looking back at what I wrote two years ago, it struck me that Henry Gifford was, even back then, casting a shadow over USGBC and LEED:

The Bad: Not Enough Emphasis on LEED Building Performance Failures

On Friday, Alex Beam of the Boston Globe wrote a column about a recent article by building science expert Joseph Lstiburek in the journal of the American Society of Heating, Refrigerating and Air-Conditioning Engineers. The article reviewed a report that was written back in March by New York City-based Henry Gifford which dissected the USGBC-commissioned New Buildings Institute study. The NBI study was unveiled at last year’s Greenbuild and claimed that LEED buildings were performing 25 percent better than comparable buildings with respect to energy efficiency.

As Mr. Gifford sets forth in his report (available via the link below), the NBI study suffered from a few big problems, including that it only obtained data from 22 percent of the LEED-certified buildings in the country, and then compared it to a national database (CBECS) that includes buildings dating from the early part of the 20th century. However, notwithstanding the fact that the data pools were flawed from the beginning, the study’s most egregious failure was that it compared the median energy consumption for LEED buildings to the average of the pool of comparable buildings. In other words, it compared an apple to an orange and drastically shifted the results of the study to make a much more compelling case for LEED. In the piece in the Globe, Lstiburek said that he’s “gotten hundreds of e-mails about his article, mostly saying, ‘I can’t believe they let you publish this’” and called Greenbuild “six thousand looney-tunes wandering around Boston.”

It’s clear that, because points with respect to energy consumption are being awarded based on a predictive model and not actual, performance-driven data, LEED buildings are not performing as well as they should in terms of energy savings, and the building science experts who have spent decades analyzing building performance are being vilified for pointing out the shortcomings of the LEED system. Moreover, from a legal perspective, if you’re building an energy model for a LEED project and don’t have a green building lawyer looking at your contract documents, you absolutely need to hire one.

I don’t think there’s anything wrong with questioning the merits of LEED- it seems like the type of thing we should be doing in order to continue refining the system. Mr. Lstiburek and Mr. Gifford are the types of people who should be speaking at Greenbuild, either keynoting or providing stakeholder education about best design practices or commissioning procedures once a building is operational. Mobilizing the industry is important, and creating green good will is great too, but I think the USGBC is missing a big opportunity here by not embracing these types of leaders who can help improve the energy performance of our buildings- we can’t lose sight of that ultimate goal.

Although I think it’s safe to assume that Mr. Gifford will not be speaking at this year’s Greenbuild in Chicago, I also think it’s interesting that the tenor of the building performance discussion does not seem to have changed all that much in the past two years; as Larry Spielvogel noted in a recent comment here at GRELJ, “[t]hat no one has produced and published comprehensive metered energy data to contradict Henry Gifford’s conclusions in more than two years speaks volumes.”

In any event, this post is not only a plug for our panel, but also an opportunity to pause and take stock of what has been a very busy few months in the green real estate legal space. From Mr. Gifford’s complaint, to the ongoing vote over the new forest certification benchmark within LEED, building code preemption litigation out West, and the condominium lawsuit in Battery Park City’s Riverhouse, there been no shortage of fascinating legal topics that will continue to merit discussion both here at GRELJ for the rest of 2010, as well as on our panel in Chicago.

If there are any other topics that you believe merit particular discussion during our panel, I would welcome your input in the comments below. I hope to meet many of you after the panel concludes!

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6 Responses to At Greenbuild, USGBC to Ask About “Next Big Challenge” in Green Building Law

  1. Chris Cheatham October 29, 2010 at 2:32 pm #

    Current LEEDigation is certainly manifesting itself in ways I never could have imagined. Future LEEDigation will be all about unhappy owners/developers that don’t get their certification.

  2. Bradley Carson October 29, 2010 at 5:06 pm #

    I wish could be there to see it! My biggest concern is not specific, it’s a concept —

    The effects of retroactive changes to programs by the USGBC or any other certification body, whether the retro-activity is express or implied.

    Y’all have fun.

    • Stephen Del Percio November 11, 2010 at 11:18 am #

      Thanks, Brad, I’m sure we’ll touch on this issue, sorry we won’t get to meet up this time around.


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    [...] As engineer Larry Spielvogel (one of ASHRAE’s distinguished lecturers) has noted over at Green Real Estate Law Journal, the fact that neither USGBC nor anyone else has come forward [...]

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    [...] As engineer Larry Spielvogel (one of ASHRAE’s distinguished lecturers) has noted over at Green Real Estate Law Journal, the fact that neither USGBC nor anyone else has come forward [...]

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