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.
Bates Masi has earned approval for its planned LEED Gold 132 North Main Street project in East Hampton.
On Long Island, local residents are proving that sustainability isn’t a panacea for bold modern architecture.
Over the past two years, I have written extensively over at gbNYC about the potential for litigation arising out of green construction projects. The country’s first reported green building litigation – Shaw Development versus Southern Builders – is an excellent example of how hidden green building risks can present unconventional legal issues to construction industry stakeholders and their counsel. It is critical to note that the case does NOT discuss the contractor’s failure to achieve LEED certification on behalf of the owner (as many articles referencing my original post at gbNYC have incorrectly asserted). Rather, it suggests the importance of accurately translating green building regulatory requirements into construction documents.
Back in early October, Chief District Judge Martha Vazquez of United States District Court for the District of New Mexico granted a preliminary injunction in favor of a number of HVAC industry plaintiffs who are challenging the legality of certain Energy Conservation Codes in the city of Albuquerque. The suit alleges that applicable federal legislation already exists for the same equipment that the Codes purport to regulate, thereby preempting the proposed codes. Over at gbNYC, we frequently discuss the problems with green building regulatory schemes, many of which have been crafted quickly and without consideration of broader legal ramifications. Judge Vazquez’ opinion, in fact, noted this very issue, pointing out that “the drafters of the code were unaware of the long-standing federal statutes governing the energy efficiency of certain HVAC and water heating products and expressly preempting state regulation of these products when the code was drafted and, as a result, the code, as enacted, infringes on an area preempted by federal law.”
A federal court has barred the enforcement of new energy efficiency codes in the City of Albuquerque on the basis that those codes are preempted by applicable federal regulations.
It’s happened: the country’s first litigation arising out of a green building project has been reported in Maryland.
In New Mexico, a group of industry trade organizations are challenging the implementation of new city-level energy efficiency codes on the basis that they are preempted by similar regulations at the federal level.