Toronto’s mandate is interesting to consider in light of the risks that we have pointed out previously both here at GRELJ and over at gbNYC with respect to green roofs generally. For example, last fall, we noted an article in Property Week magazine that discussed insurer attitudes towards the increased installation of green roofs in the United Kingdom. Many insurers believe that green roofs are likely to become flammable and have identified schools- and their relatively easy low-rise roof access- as particularly troublesome from the perspective of potential arson. Property Week also cited a 2006 report authored by Zurich’s Stuart Blackie which stated that ““[t]his concept of construction is often sold on its environmental benefits. The issue of fire spread, combustibility and indeed fire safety are often overlooked.” Toronto also appears to have ignored some evidence that suggests those environmental benefits may have been oversold. For example, the Canadian National Research Council had previously reported to the city that the energy savings from green roofs would only occur for 3 months during the year and that any claimed water retention benefits simply did not exist. It will be instructive in the coming months to see the reactions- if any- from the property insurance market to the new legislation, or if Toronto’s development community will muster any sort of additional challenge to its implementation.

I think the Toronto mandate is important to consider in the context of other green building policies that have been enacted here in the United States quickly without sufficient analysis. The fact that the Toronto legislation was passed without any real debate- despite significant evidence that its perceived benefits might be less than suggested- suggests the same type of policymaking that here in the United States has already become problematic in litigations such as AHRI v. City of Albuquerque. If policies are implemented poorly, green building goals are not advanced when litigation ensues, either to challenge such policies or as their direct byproduct. I also think it’s clear that this type of green building legislation will continue to be enacted in municipalities of all shapes and sizes regardless of the practical implications for private real estate. Accordingly, it will remain increasingly critical that industry stakeholders monitor such activity in their localities such that they can work with counsel to formulate sufficient risk management strategies that address those emerging implications.

• Toronto Adopts Mandatory Green Roof Requirements (PR)
• Toronto Mulls Mandatory Green Roofs (Green, Inc.)
• Green Roofs a Hidden Risk? (gbNYC)