In early March, USGBC released a white paper titled “The Legal Risk in Building Green: New Wine in Old Bottles?” The eight-page paper, which was presented as a panel discussion between four attorneys, concluded that “[p]erhaps surprisingly, in light of the increased attention in seminars and workshops . . . much of the discussion among the attorneys [in the paper] suggests that many of the legal theories advanced in those venues to suggest novel liability associated with building green are, instead, simply new wine in old bottles.” While the paper does not appear on the USGBC’s web site, it was circulated by individual chapters; I accessed a copy through our New York chapter’s weekly email blast and have included a link to download the paper from the USGBC-NY homepage below. I applaud USGBC for taking a critical step towards acknowledging the liability implications of green real estate development and construction, but do think it is important for attorneys practicing in this space to digest the paper’s conclusions. Although the paper does identify and discuss many important legal issues, I think that it ultimately falls short of elevating the analysis of such issues to the level necessary for legislators and stakeholders to make completely informed policy- and project-related decisions. Specifically, by suggesting that “[c]onjecture, anecdote, and even rumor swirl around recent presentations, workshops and discussions circling the question of what legal claims may be based on the design, development, and construction of sustainable buildings,” the paper seems to be an effort to sweep many of the thornier legal issues that may indeed ferment into “new wine” under the rug.
Tag Archives | green building contracts
Back in January here at GRELJ, I critiqued Andrew Burr of CoStar’s list of the top ten green building stories from 2008 by noting his lack of any reference to the green building litigation and associated risk management issues that began to emerge during the course of last year. Accordingly, I was pleased to see his recent column acknowledging some of the risks inherent with marketing green buildings, both in project-specific materials as well as securities disclosures. In Mr. Burr’s piece, both Paul D’Arelli of Greenberg Traurig and Brian Anderson of Whyte Hirschboeck Dudek (who describes the securities issue in detail in his Understanding the Business of Green article, available via the links below), among others, note the importance of educating owners about the terminology associated with the LEED certification process and the potential legal dangers of misrepresenting a property’s green design features in terms of ultimate building performance.
Over the past six months, the number of attorneys that have become active in the green building space has increased exponentially. But what, exactly, is a green building, construction, or real estate lawyer? How do we define green real estate as a practice area? Over the past two years at gbNYC, I believe that we started to define the parameters of this space, and my aim here at GRELJ is to continue expanding my analysis of the emerging opportunities (and corresponding risks) that green real estate presents to industry stakeholders. To this end, perhaps our most important article at gbNYC was our “Top 5 Legal Issues to Consider on Green Construction Projects,” which we presented a little over a year ago. Two of these issues were at the very heart of the Shaw Development case, and all five are absolutely imperative for stakeholders to consider, particularly given how the current state of the economy is driving so many projects towards litigation.
I think it’s interesting to compare the treatment that green building risk management issues received at Greenbuild as compared to West Coast Green. We pointed out over at gbNYC earlier this fall that the latter included a panel discussion titled “Packing a Parachute: Practices that Minimize Risk and Prompt Best Use of Green Features,” while the legal issues associated with building green received very little attention at Greenbuild. As we have noted extensively at gbNYC, the West Coast Green panel similarly stressed that there is no such thing as a form green construction contract or “magic” green provision that can satisfactorily account for the risks associated with green construction. It’s important for stakeholders – or other organizations staging similar conferences – to recognize that attorneys in this space are attempting to assist the industry in mitigating emerging risks up front, in the transactional context, rather than through litigation.
Starwood’s element hotel brand is coming to Mercer County, New Jersey, and raises some interesting green legal questions in the context of franchising arrangements.
A new report from Marsh explores current trends in the insurance markets with respect to available coverages for the risks associated with green building projects.
It’s happened: the country’s first litigation arising out of a green building project has been reported in Maryland.
I had the opportunity last week to attend an excellent CLE that was offered by American Land. The program focused on the legal issues that attorneys must remain particularly mindful of when advising clients on green real estate projects. The Braganca Law helps you with your legal matters. Accordingly, here are gbNYC’s top five legal […]
I’ve written before about the potential for design professionals to unwittingly expose themselves to unanticipated risks on green construction projects. In a presentation at last month’s 2007 AIA National Convention in San Antonio, Frank Musica, an attorney with a Maryland-based insurance company, provided an overview of twenty-one actual “green claims” brought against engineers and architects. […]