We’re happy to be back here at GRELJ after an extended winter holiday- I hope 2011 is treating you well so far.

Last month, the Ontario Municipal Board considered a variance dispute in Toronto’s Kingsway neighborhood. Specifically, the Board considered arguments from the applicants that the “modernist” design for their proposed 3-story home at 7 Ashwood Crescent - for which they intended to seek LEED certification and would replace an existing bungalow – qualified for a variance to Toronto’s Official Plan and the Ontario Planning Act on the basis that its proposed green features and third-party certification constituted “extenuating circumstances.”

In its decision rejecting the applicants’ request, the Board noted that their case “opened with emphasis on LEED. The architect’s letter called LEED ‘the best guarantee with respect to the quality’” of the project and that “environmental sustainability will be promoted.” (As you review the decision, note that the Board did not provide any overt criticism or critique of LEED, nor did it point to any authority addressing LEED or other green building performance issues).

However, the Board did state that it “must be cautious . . . concerning ‘sustainability’ and various trademarks for ‘green building’ – not for fear of overextending the cause of environmental innovation but, on the contrary, of trivializing it. The Board takes notice that, with so many reported attempts by all and sundry to oversell environmental benefits (notably to expedite approvals), a new word was coined in North America – ‘greenwashing.’ It also applies to construction.” The Board also pointed out that razing the existing bungalow “in the name of environmental sustainability” would “surprise at least some observers.”

Nevertheless, while the Board did note that the term “sustainability” is used in Toronto’s Official Plan, it held emphatically that the project’s claims “promoting environmental sustainability” are “no shortcut” around the statute (which provides that a variance can be authorized if it is minor, desirable for the appropriate development or use of the property, and maintains the general intent and purpose of the municipality’s plan). The Board stated that “[t]here is simply no statutory authority for [third-party environmental certification labels] to sidestep land use planning requirements . . . ‘Certification by a private third party’ is no substitute for a transparent and legally mandated public process, and no guarantee of good planning.”

While interesting on their own, the applicants’ arguments before the Board also reminded me of those that were successfully advanced in the Destiny USA litigation here in New York, 889 N.Y.S.2d 793 (App. Div., 4th Dep’t 2009). There, as you may recall, and contrary to the Board’s decision in 7 Ashwood Crescent, the Appellate Division used the project’s “unique” green features  and “revolutionary” construction financing to carve out an exception to well-settled law, holding that injunctive relief requiring the lender to continue funding the project was proper (notwithstanding, as one justice pointed out in dissent, that it was unclear how Destiny would be irreparably harmed).

We’ll add 7 Ashwood Crescent to Destiny USA on our roster of decisions connecting well-settled real estate and construction legal principles with third-party green building certification, and continue monitoring whether other, similar applications and proceedings manifest themselves here in 2011.

Many thanks to Marshall Leslie for passing along a copy of the Board’s decision.

In what’s becoming an annual year-end tradition here at GRELJ, we take a look back at the five most important legal issues (plus a special bonus issue!) that we discussed during 2010 before moving forward into what promises to be just as wild a ride for green design, construction, and real estate legal issues in 2011.

• USGBC found itself squarely in the middle of the year’s biggest story: Henry Gifford’s $100M class action lawsuit against it, which was filed in the Southern District of New York back in October. While it remains to be seen what – if anything – will come of Gifford’s action from a legal perspective, the filing of the suit itself set off shock waves throughout the green building community. Equally interesting were USGBC’s general silence about Gifford’s allegations and Gifford’s posture in ongoing settlement negotiations. Regardless of whether the suit slowly fades from the green building public’s eye or heats up once again, this will continue to be one of 2011′s most intriguing stories.

• Green building litigation broke out at New York City’s Riverhouse condominiums. Filed back in May in New York County Supreme Court, Gidumal v. Site 16/17 Development LLC could mark the tip of an iceberg of claims that use the promise of a building’s or tenant space’s anticipated LEED certification or increased energy efficiency as an actionable sword to reform leases, escape purchase agreements, or recover money damages. At least one other similar suit has been filed against a green developer in Toronto, and other unreported cases also exist. Expect more discussion of this type of risk on the owner/sponsor/developer side of the green building equation in 2011.

• Industry stakeholders continued to fight back against proposed increases in energy efficiency requirements at the state and local levels. Federal lawsuits in Albuquerque, New Mexico (AHRI) and Washington State (BIAW) moved forward against proposed building codes, alleging that the codes would mandate energy efficiency standards for certain types of HVAC and other products that exceed controlling federal requirements and were thus preempted as a matter of law.  As USGBC begins to commit to Standard 189P and the International Green Construction Code as a legislative tool in 2011, the potential will increase for similar suits elsewhere in the country.

• The green building legal community was left to wait for another year for the anticipated boom in LEED-related litigation (i.e. “LEEDigation”). We wrote about this recently here at GRELJ: the fact that there was no reported litigation arising out of a project’s failure to earn LEED certification as anticipated in 2010 is extremely notable and could have significant policymaking repercussions in 2011.

• Standard 189P was incorporated into the International Green Construction Code as an optional compliance path. I expect this to be on our list of 2011′s top green building legal issues as USGBC begins to push Standard 189P and the IGCC as a legislative tool for state and local governments while LEED itself returns to the role for which it was originally intended: a voluntary tool for the very top of the marketplace.

Bonus issue:

• The legacy of USGBC’s decision to uphold the LEED Gold certification of Northland Pines High School remains unclear. Are USGBC and GBCI serious about penalizing LEED projects that fail to comply with LEED Version 3.0′s Minimum Program Requirements or other prerequisites? Is “decertification” a legitimate risk or a green building red herring? These questions are still unclear as 2010 draws to a close; perhaps 2011 will begin to shed some light on them.

My sincere thanks to everyone who has participated here at GRELJ in 2010 and best wishes to you for a healthy and happy 2011!

*Earlier today Last Friday, October 8, a group of plaintiffs led by Henry Gifford filed a class action lawsuit against USGBC in United States District Court for the Southern District of New York. The suit alleges violations of the Sherman and Lanham Acts for “deceiving users” of the LEED system about “whether LEED buildings use less energy than conventionally-built buildings.” We will have much more to say about the suit here at GRELJ as further details emerge, but in the interim here’s a copy of the complaint. The Southern District’s docket numer is 1:10 CV-7747.

Some reactions are already beginning to trickle in:

• Henry Gifford Sues USGBC (Real Life Leed)
• Is Henry Gifford Rosa Parks? (Green Building Law Blog)
• USGBC, LEED Targeted by Class Action Suit (Building Green.com, with quotes from Gifford and USGBC)
• $100 Million Class Action Filed Against LEED & USGBC (Treehugger; Lloyd Alter writes that Gifford “is hurting himself and green building in general. I think he’s nuts.”)

From Tristan Robert’s piece at Building Green.com:

Why Sue?

Asked by EBN why he was motivated to go to court, Gifford said, “I’m afraid that in a few years somebody really evil will publicize the fact that green buildings don’t save energy and argue that the only solution [to resource constraints] is more guns to shoot at the people who have oil underneath their sand.” In other words, he says he’s hoping to make the green building movement more honest so that it’s not embarrassed down the road.

USGBC told EBN that it was reviewing the litigation and would respond in due course. In addition to USGBC, other named defendants are David Gottfried, a USGBC founder; Rob Watson, who helped start LEED in the 1990s while working for the Natural Resources Defense Council; and Rick Fedrizzi, a co-founder and currently CEO. Responding to EBN’s request for comment, Watson said, “I can’t comment on ongoing litigation except to say that USGBC is examining the complaint. USGBC has confidence in LEED and in our role in stimulating positive market change.”

Michael Italiano, the only key USGBC founder not named as a defendant, told EBN that while he hadn’t reviewed the case, “To me it sounds frivolous and it doesn’t have much chance.” He noted, “LEED doesn’t guarantee anything, and I think LEED gives people the tools to understand that.” Owners who want to verify performance can enroll in LEED for Existing Buildings, monitor their energy bills, and take other actions, he noted. A lawyer and currently CEO of Market Transformation to Sustainability, a nonprofit behind green standards, Italiano said that lawsuits targeting standards that have allegedly constrained trade typically focus on lack of a bona fide consensus process of standard-setting. In the case of LEED, he said, a broad array of stakeholders has been involved in writing and reviewing LEED standards.

*Updated Thursday, October 14

Late last week, United States District Court Judge Martha Vazquez ruled on a motion for summary judgment filed by the plaintiffs – three trade associations representing manufacturers, distributors, and installers of HVAC products and water heaters, including AHRI, and twelve local distributors who sell and install HVAC products – back in September of 2009. As you will recall, in October of 2008 Judge Vazquez had granted the plaintiffs’ application for a preliminary injunction against the enforcement of Albuquerque’s Energy Conservation Code on the basis that certain portions of the Code are preempted by federal law. A copy of Judge Vazquez’s decision on the summary judgment motion is available here for your download and review.

The decision grants the plaintiffs summary judgment on their claims that the prescriptive compliance paths in Volume I of the Code (which applies to commercial and multi-family buildings) and Volume II of the Code (which applies to one- and two-family detached dwellings and townhouses) are expressly preempted by applicable federal legislation. In her opinion, Judge Vazquez notes that “[t]he plain language of the preemption statute makes clear that Congress intended the preemption to be broad in scope” and that “Congress recognized that the National Appliance Energy Conservation Act ‘preempts state law under most circumstances.’”

However, Judge Vazquez denied (without prejudice) the plaintiffs’ claims that the performance paths contained in each Volume are also preempted. Perhaps most interestingly, on pages 9 and 10 of her opinion, she discusses the plaintiffs’ claims that the LEED Silver and Build Green New Mexico compliance paths in Volume II of the Code should not qualify for the building code exception to preemption. (The building code exception is set forth in 42 U.S.C § 6297(f) and allows state and local governments to set energy efficiency targets for new construction which can be reached with equipment or products whose efficiencies exceed federal standards, provided the enabling legislation also includes other means to achieve the targets with products that do not exceed the federal standards. The building code exception’s preemption analysis is performed under what some have described as a “convoluted” 7-part test that is outlined in 42 U.S.C. § 6297(f)(3)). In denying summary judgment for preemption of these two compliance paths, Judge Vazquez writes that “[t]he preemption statute applies to ‘products.’ Plaintiffs state that LEED Silver and Build Green New Mexico . . . are regulations concerning energy efficiency or energy use of covered products but do not point to the relevant provisions of LEED Silver or Build Green New Mexico.”

We will have much more to say about both this opinion and its implication for the Building Industry Association of Washington et al. v. Washington State Building Code Council litigation, which remains pending in United States District Court for the Western District of Washington, here at GRELJ in the coming weeks; in the meantime, please feel free to chime in with your reactions to the opinion (only 13 pages and a relatively quick read) in the comments below.

Many thanks to my friend and colleague Cullen Howe, who publishes the recently-launched Green Building Law Update Service blog through Columbia Law School’s Center for Climate Change Law, for forwarding me a copy of the decision.

Earlier this year, Pat Penfield of Syracuse’s Whitman School of Management and Rene Germain at SUNY’s College of Environmental Science and Forestry published a study titled “The Potential Certified Wood Supply Chain Bottleneck and Its Impact on LEED Construction Projects in New York State,” which was recently profiled on the Science Blog. The study is interesting because its conclusions echo – from a practical perspective – the calls by many in the industry for USGBC to open up its MR-7 Certified Wood credit to wood products certified under other sustainable forest management systems apart from FSC. It’s also of particular personal interest to me because of its focus on the timber industry as it exists here in New York State.

Penfield and Germain’s purpose in performing the study was to determine whether end users in New York are having difficulty in sourcing FSC-certified wood products, as well as to assess exactly how FSC wood is being specified and used on LEED-certified projects across the Empire State. The authors identified these questions based on “anecdotal evidence from suppliers and users over the past several years suggesting a supply shortfall,” as well as a 2008 study from the Yale Program on Forest Policy and Governance. According to the data that the authors were able to assemble, 38 million board feet of FSC-certified sawlogs were produced in New York State in 2010 on 1.46 million acres of FSC-certified forest. However, because only 1 FSC-certified sawmill exists in New York State, and FSC certification requires an intact chain-of-custody, the authors calculated that 28 million board feet of FSC-certified sawlogs leave New York State’s supply chain annually.

Using USGBC’s database of LEED-certified projects, the authors identified 48 public LEED projects in New York State. 14 of those 48 projects (29 percent) used FSC-certified wood (i.e., earned the MR-7 credit). The authors then proceeded to contact the architects for each of those projects, and administered a 20-question telephone survey which yielded some interesting results about architect attitudes towards FSC:

• 92 percent said they used FSC because of the available “LEED points” and “good stewardship.”
• 25 percent said FSC products were requested by the client;
• 27 percent had difficulty identifying an FSC supplier;
• 42 percent perceived a shortage of FSC-certified wood in the marketplace; and
• 73 percent said they paid a premium for FSC-certified products.

These last two points lead Penfield and Germain to make some interesting conclusions. First, they were “surprised” to find a price premium for FSC-certified wood products given that “[m]ost of the literature on certified wood products has reported that price premiums are rare (Jenson et al. 2003, Anderson et al. 2005, Perera et al 2008). . . . [I]t is noteworthy that most LEED projects were rquired to purchase FSC-certified wood at a premium price from neighboring states, which suggests a lack of product in New York and evidence of supplier leverage on a regional basis.” 

Critcally, they also note that “[a]nother alternative for alleviating this potential shortage of certified wood in the marketplace is for the USGBC to reconsider their certified wood criteria for LEED to possibly include other certification programs, such as the SFI. The SFI-certified products are recognized by many leading green building rating programs in the United States, Canada, and overseas, including the National Green Building Standard, National Association of Home Builders, and Green Globes. Including the SFI program would add a considerable area of certified forestland and stumpage, which in turn would make more certified logs available for processing.”

This study is a timely addition to the antitrust aspects of the debate – which we’ve noted previously here at GRELJ - as USGBC reviews the most recent public comments to the proposed revisions to MR-7.

Just before the July 4 holiday, Fireman’s Fund, which launched the green building property insurance market back in 2006, released what it is calling its “next generation” of green building policy endorsements. Calling it a “significant enhancement to what’s currently available in the marketplace,” Fireman’s Fund’s Steve Bushnell also introduced a “Green Financial Incentive Coverage” policy that provides policyholders with protection from the loss of green building-related financial incentives, including tax credits and deductions, utility rebates, and loan discounts, for a period of two (2) years after the loss.

According to Mr. Bushnell, the new endorsement evinces Fireman’s Fund’s “deeper understanding of evolving green building construction and insurance issues.” David Cohen, the company’s senior director of real estate, called the policy “a powerful incentive as many new green buildings are built with these cost savings factored in. Every day, new incentives are introduced – both from the utilities and the government at the local, state and federal level – incenting property owners to build green and losses could get in the way of that.”

This latter point, of course, is one we make frequently here at GRELJ in the context of design and construction agreements and leases; the pace of regulatory activity continues to make translating legislative requirements into contract documents a major challenge. The new endorsement also appears to be – at least implicitly – an acknowledgment of the $600,000.00 in lost tax credits which the developer suffered in the Shaw Development litigation, though it is unclear whether – under the terms and conditions of the endorsement – the developer’s loss would have been covered.

In addition to the new endorsement, Fireman’s Fund simultaneously announced that it has made further refinements to its existing line of green building coverage, including:

• Broadening eligibility for post-loss green upgrades to include all real and personal property that more efficiently uses energy or water, improves human health or reduces environmental impact (such as alternative energy generating equipment and water systems or green roofs);

• Combining four of its endorsements – three commercial and one manufacturing – into a single endorsement, which also includes coverage for building commissioning;

• For certified buildings, coverage now allows the insured to attain certification at one level above the certified green building level that the insured had prior to the loss or damage (i.e. LEED Gold instead of Silver);

• Vegetated roof coverage has now been extended to vegetated swales and other vegetation that reduces the heat island effect, including vegetated walls. This coverage now applies to both certified and traditional buildings (previously it was only for certified buildings); and

• Coverage has also been expanded to include porous paving – water permeable paving that allows water to drain into the ground to help manage water flow.

Perhaps what’s most interesting about the press release is Fireman Fund’s acknowledgement that, to date, approximately 1500 commercial property insurance policyholders have purchased one of the company’s green building endorsements (though there is no information on how many claims have been asserted against those policies).  It goes without saying – as always – that you should review your policies of insurance – property, professional liability, builder’s risk, or otherwise – with heightened scrutiny in connection with your green construction project to confirm exactly what additional insurance – if any – you may need to procure.

Early last week, the Newark (Delaware) City Council postponed a vote on proposed amendments to Newark’s building codes that would require new construction to earn 25 points under either LEED 2009 for New Construction or LEED 2008 for Homes. In addition to the typical green building regulatory concerns relating to costs and red tape which were raised by local designers, builders, and developers, one architect who participated at the City Council session suggested that – as drafted – the ordinance might violate the copyrights which USGBC holds in its various LEED systems. According to the Newark Post, the city’s staff has contacted USGBC and is investigating the issue, and expects resolution at another council meeting shortly.

The first question I asked myself when I saw this story is whether a state or local government enjoys immunity from suits for copyright infringement, which must be brought in federal court pursuant to 28 U.S.C. § 1498. (Of course, whether USGBC would choose to assert a claim against a government which has allegedly infringed one of its copyrights is a totally different question). Although local governments (towns, cities, counties, etc.) are not immune from suits brought under federal law, the answer is not straightforward with respect to state immunity. (The federal government, on the other hand, has expressly waived its immunity from claims for copyright infringement, though the only available remedy is money damages and not injunctive relief.)

Section 511 of the Copyright Act was adopted by Congress in 1991 in the aftermath of BV Engineering v. University of California at Los Angeles, where UCLA successfully defended a copyright infringement claim on the basis that it enjoyed sovereign immunity under the Eleventh Amendment. 858 F.2d 1394 (9th Cir. 1988). Section 511 states clearly that “[a]ny State . . . shall not be immune, under the Eleventh Amendment of the Constitution of the United States, from suit in Federal court . . . for a violation of any of the exclusive rights of a copyright owner.” 17 U.S.C. § 511. (Just a reminder that the Eleventh Amendment immunizes states from suits for money damages or equitable relief without their consent).

Despite this seemingly clear statutory provision, two Supreme Court cases from the late 1990s suggest that Section 511 might not allow a copyright infringement claim to proceed against a state government. In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 119 S.Ct. 2219 (1999) (patent) and College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 119 S.Ct. 2199 (1999) (trademark), the Court rejected patent and trademark infringement claims against the state of Florida that were purportedly authorized by similar provisions in the patent and trademark statutes (35 U.S.C. § 271(h) and 15 U.S.C. § 1125(a)(2), respectively). Justice Stevens suggested in a footnote in the patent decision that Section 511 might nevertheless receive different treatment, but some brief follow up research did not identify any subsequent cases in this line which confronted the Copyright Act. It is also worth noting that the Court’s holding in both cases was grounded in Congress’s inability to enact statutes that effectively circumvent constitutional protections.

Regardless of where the law currently stands on the interplay between sovereign immunity and Section 511 of the Copyright Act, it’s unclear here exactly how Newark’s proposed amendments could violate USGBC’s copyrights because the text of the proposed amendments does not incorporate any language from the rating systems directly. Nevertheless, it’s an interesting and important consideration for state and local governments that do, in fact, pull relevant sections from third-party rating systems directly into proposed legislation, and a good reminder that a broad range of legal issues exist for policymakers to analyze as they consider and ultimately craft legislation.

Perhaps unsurprisingly, then, I had difficulty identifying specific buildings or spaces where the breach of specific green obligations in a lease give either party the ability to declare a default and terminate the lease. However, and as Schnapf suggests, I was able to find some details on the leasing structure for the New South Wales Police Headquarters Building, just outside of Sydney in Parramatta, Australia, which provides a specific remedy for the tenant in the event that the landlord fails to satisfy certain terms of the green lease. Designed by architects Bates Smart and completed in 2003, the 15-story tower’s lease document between the landlord, the Department of Commerce, and the New South Wales Police Service requires the landlord to earn a 4.5 star NABERS rating (National Australian Built Environment Rating System, an environmental self-reporting system that’s roughly equivalent to our Energy Star program) over the lifetime of the lease. The rating is evaluated annually and, if the landlord fails to earn 4.5 stars, the tenant’s rent is reduced by the amount of any increased energy and water costs that arise as a result.

This is an interesting arrangement which we haven’t heard much about here in North America. Is it conceivable that a tenant could demand that the landlord build in a rent rebate provision into its lease in the event the building or space fails to earn (or maintain) the rating required by the terms of the lease? I think it would be difficult to quantify the difference in operating expenses between a LEED Silver building and a LEED Gold building, but the concept is interesting to consider. (Of course, such an arrangement would depend on whether the lease is gross (the landlord pays for building operating expenses) or net (the tenant pays)). What about tying a reduction in rent to a lower level of third-party certification? Again, the question would be how to quantify such a reduction, but I would think a landlord would only agree to using its “reasonable efforts” to pursue the third-party rating anticipated by the tenant. Nevertheless, in a soft leasing climate where deals are far and few between, tenants may be able to insist on stricter language in green leases during negotiations.

Just as a side note, the USGBC’s Green Lease Guide suggests, under its form Defaults and Remedies section, that “[t]he remedies included in a lease for breaching environmental objectives will reveal how critical these obligations are to the parties. If the objectives are aspirational, the lease will include something less than an absolute obligation to comply, such as reasonable efforts. On the other hand, if the objectives are critical, the lease will include an absolute obligation to comply.” For example, if a tenant is required to occupy space in a LEED-certified building or LEED-CI-certified buildout (as is the case for the General Services Administration, which must occupy LEED Silver-certified space pursuant to federal legislation), the landlord’s failure to deliver that space at the required level may necessitate the tenant insisting on a right to terminate in the body of its lease. Conversely, for the landlord pursuing LEED-EBOM certification pursuant to a similar mandate or, more significantly, in order to comply with applicable legislation, certain green lease provisions may need to have more teeth.

Has anyone come across arrangements in leases similar to the New South Wales Police Headquarters or other provisions where green obligations were more than merely aspirational?

Back in August, you may recall that Community Solutions executive director Pat Murphy authored the first piece of a three-part survey titled “LEEDing from Behind: The Rise and Fall of Green Building,” which we noted here at GRELJ. Our article pointing you to the piece generated quite a bit of commentary and, now that Mr. Murphy has completed Parts 2 and 3, we thought we’d point you to his new book compiling the survey which is titled “The Green Tragedy: LEED’s Lost Decade.” The book was released while I was away last month and builds on Part 1 by tracing the historical argument promoting minimal green building cost premiums, reviewing the ongoing marketing efforts behind LEED, and concluding that policy makers should demand energy efficiency standards more akin to the German Passive House rather than “cheap quick ‘green’ solutions.”

Interestingly, in the preface, Murphy observes that “[w]e are now faced with a movement to adopt LEED as part of our building codes. An over-marketed standard that is under serious attack for its poor energy performance is now being proposed and accepted by cities as a requirement for our buildings. The idea of accepting as law an inadequate standard that has been developed by the building industry – thereby allowing that industry to usurp the long-established methodology of setting building standards by government policy- is absurd and dangerous.”

In addition to their significant legal implications, these remarks resonate with the conclusions of the recent NIBS report and, in my opinion, portend the types of critiques I believe we will see more forcefully in 2010 if LEED buildings do not perform at a statistically higher level under Version 3.0. Mr. Murphy’s book is available here, and I look forward to continuing the robust discussion that emerged after we noted Part I here at GRELJ in the comments below.

• The Green Tragedy: LEED’s Lost Decade

First, although Michael Brooks of REALpac (who participated in last month’s green leasing panel at the Urban Green Expo here in New York City) is quoted in one of the articles, it is not clear that Mr. Malbranck’s lease is derived from any of the forms which were discussed during that panel, including REALpac’s, the Model Green Lease, or the BOMA Green Lease Guide. As Mr. Brooks notes, “it’s impossible to say how many commercial buildings in Canada are using green leases because no one, including REALpac, tracks that at the moment.” It’s certainly a relatively small number, but as an increasing number of landlords attempt to implement green leasing practices, questions about the uniformity of green lease provisions could become an issue. I’m also intrigued about the idea of tracking green leases and whether any other organizations have attempted to do so (none have, to my knowledge).

In terms of other landlords applying similar blanket green lease requirements across available space in their buildings, I thought it was interesting to note that Mr. Malbranck admits that “a number of leasing agents and prospective tenants have inquired about the space, but backed off when they found out about the green leases. ‘They didn’t come right out and say it, but you got the sense it was an issue with them.’” However, the lone tenant that has signed up to date with Mr. Malbranck was attracted by the green lease concept; the owner of Lux for Sprouts, a children’s clothing and toy store, states that she specifically selected 4100 square feet of space on the first floor based on (1) the image that occupancy in a green building should create for her company; and (2) her belief that green buildings make it easier to attract and retain employees. Here, I would suggest again the importance for landlords to closely scrutinize broad, aspirational representations in green leases about green building benefits or performance, particularly if such representations are overstated or ultimately unrealized by tenants.

I was also reminded of Mr. Brooks’ remarks on our panel about enforcement of green lease provisions; although the articles reporting on 1735 Corydon Avenue did not get into this level of detail, I do think it’s worth repeating what Mr. Brooks noted about green leasing practices in Australia (where he had met a landlord whose form lease included a variety of green provisions which- if breached- entitled it to terminate the lease and evict the offending tenant). If more landlords apply mandatory blanket green leases, it will be curious to see what types of specific enforcement mechanisms (if any) are included in those documents. Given that Mr. Malbranck has only signed up a single tenant, I would be surprised if he ultimately exercised any right to terminate based on the breach of any green lease provisions, but the fact that potential tenants have balked at his requirements may suggest that such enforcement mechanisms are included in the scope of his green lease.

Finally, I also think that 1735 Corydon Avenue suggests it’s not unreasonable to consider the possibility that, eventually, the LEED system (or some other third-party green building rating system) will require owners to exclusively negotiate and execute green leases in order to earn certification, whether as an individual credit, for example, under LEED’s New Construction or Core and Shell rating systems, or perhaps even as a mandatory Minimum Program Requirement that serves as a prerequisite to formal LEED certification. For example, USGBC recently released its Green Office Guide: Integrating LEED Into Your Leasing Process and, although I have yet to review it, it’s clear that USGBC is beginning to pay closer attention to the intersection of green leasing and LEED.

We’ll try to flesh out more details about 1735 Corydon Avenue and follow up here at GRELJ as appropriate.

• Green Leases Give Building Manitoba First (Winnipeg Sun)
• Green Leases Seen as Wave of Future (Winnipeg Free Press)

First, the design professional who functions as an advocate, extolling the promises of increased energy efficiency, asset values, and rental premiums of LEED-certified buildings is creating a corresponding high expectation in the eyes of his or her client. As we noted over at gbNYC in the aftermath of a BIM/green building panel held here in New York City nearly two years ago, insurance industry professionals will almost always observe that claims start with violated expectations. As architect and attorney Fred Butters points out in his seminal Real Estate Issues article, Greening the Standard of Care: Evolving Legal Standards of Practice for the Architect in a Sustainable World, “[i]f the architect does not clearly and sufficiently indicate the positives and negatives [of green building installations, technologies, or certification programs], the client will be looking to the architect to make him or her whole. Becoming an advocate for many types of sustainable approaches may cause the design professional to overlook the messy reality for the sake of being a good advocate.”

Butters also points out that “[i]f the architect is serving as an educator, the client’s decision to ‘go green’ may be only that- the client’s decision. However, if the architect is ‘encouraging’ or ‘advocating’ for the incorporation of green features, his or her advice is implicated in the design decision. In that instance, the possibility that the architect can avoid the effect of the client’s unmet expectations is low.” Advocating for LEED or other green design features may also implicate standard of care issues, potentially elevating that standard beyond what prevails for architects and engineers in their particular geographic location. As we have noted previously, this amounts to an assumption of liability above what is imposed by law; most professional liability policies will exclude coverage for claims where the design professional has failed to satisfy that heightened standard.

What makes this issuer thornier, though, is that the architect actually does, in fact, have an obligation- both in the 2007 version of the AIA contract documents, and the new AIA Canon of Ethics- to promote sustainable design practices. For example, Canon VI, Obligations to the Environment, requires the architect to “advocate the design, construction, and operation of sustainable buildings and communities.” (Ethical Standard 6.2). In performing design work, the architect “should be environmentally responsible and advocate sustainable building and site design.” (Ethical Standard 6.1). As Mr. Butters also points out, and as we’ve noted here at GRELJ previously, the B201 (2007) Owner – Architect Agreement contains similar requirements:

§ 3.2.3 The Architect shall present its preliminary evaluation to the Owner and shall discuss with the Owner alternative approaches to design and construction of the Project, including the feasibility of incorporating environmentally responsible design approaches.

§ 3.2.5.1 The Architect shall consider environmentally responsible design alternatives, such as material choices and building orientation.

The National Society of Professional Engineers’ Code of Ethics contains a similar obligation under Professional Obligations, III.2.d: “[e]ngineers are encouraged to adhere to the principles of sustainable development in order to protect the environment for future generations.” The design professional is thus placed in a delicate position; professionally, it has an obligation to promote sustainability, but at what potential perils?

Mr. Yudelson’s remarks are also important to note in light of our recent article here at GRELJ about the insurance coverage implications of the Energy Ace LEED certification “guarantee.” Unbridled green building advocacy could also provide an insurance carrier with the argument that the design professional has provided the functional equivalent of a guarantee- either LEED certification, performance, or otherwise- that might give the carrier grounds to deny coverage for negligence claims arising out of the project. For example, and as we noted previously, “the concept of a guarantee is essentially representing perfection; anything less is a breach of contract, claims for which are similarly not covered by a professional liability policy (though the insurer may still defend under the policy but reserve its rights). In short, absent confirmation from the carrier that coverage will remain available, it will continue to be dangerous for parties that maintain professional liability insurance to make the types of representations implicated by the Energy Ace guarantee.”

I think it’s therefore worth repeating that while the analysis of green building legal issues related to standards of care, professional liability insurance, and LEED building performance continue to play out, architects and engineers should be particularly careful when making the types of representations that Mr. Yudelson suggests when participating in the design of green construction projects.

• Green Building Consultant Challenges San Antonio City Groups to Welcome “New Green Era” (PR)
• Green Insurance Law: Thoughts on BIM and LEED Coverage for Design Professionals (gbNYC)

The reductions are staggered between 2010 and 2013 and beyond (10 percent through 25 percent, though the benchmark against which those reductions are measured is not set forth in the pending bill); Energy Star ratings would increase from 55 in 2010 to 75 in 2013 and beyond. An independent consultant would determine whether the required energy reduction is met; if not, the contractor (or, interestingly, another entity warranting the energy use) will be responsible for reimbursing the city for the cost of the excess energy use. The amendment is BL2009-503; a vote is slated for later this month. “This would allow an alternative that focuses on the performance of the building, not on the process of how you got to that performance,” Dominy told the Tennessean.

The genesis for the amendment is a 16-classroom addition to Antioch’s middle school, which uses an HVAC and building envelope system that does not qualify for credits under LEED (though it’s unclear exactly why this is the case). The contractor which designed and installed the system- Energy Systems, Inc. of Cookeville, Tennessee- is owned by Bob Southerlan, a former aerospace engineer who is “worried about being knocked out of the Metro construction market.”

I think that this is a critical battle to watch as it may suggest that local governments are coming to view LEED as something less than the mark of building performance; Mr. Dominy’s thoughts about process versus performance are particularly noteworthy in this context. It also echoes some of the remarks in the comments to Pat Murphy’s recent article as presented here at GRELJ (i.e., Mr. Murphy himself noted that “[t]here is a crying need for accurate, verificable and reliable energy rating systems. If LEED doesn’t fill the bill, other options will come forward.”) In addition, if it is true that Southerlan’s system is somehow excluded from the purview of LEED, there may be other, more serious problems with Nashville’s legislation from an antitrust perspective, which we’ll get into in a subsequent article.

• Nashville’s Green Building Code Under Review (Tennessean)

Green building design, construction and operation practices have gained widespread popularity in the healthcare industry in recent years, even considering the current challenging economic climate. This trend is likely to continue because green building practices result in both decreased overall life cycle costs and healthier building occupants. This article will briefly examine the background of building green in the healthcare sector, discuss the unique needs of healthcare facilities in relation to green building practices, and finally examine the choices and challenges faced by healthcare facilities in determining whether to design, construct and/or operate a green building facility, with a specific emphasis on the legal issues therein.

Introduction

According to the United States Environmental Protection Agency (“EPA”), green building is the practice of creating healthier and more resource-efficient models of construction, renovation, operation, maintenance and demolition. The leading vehicles for green building implementation in the healthcare industry are the Green Guide for Healthcare (“GGHC”), a healthcare industry driven system that was created by the American Society for Healthcare Engineering in 2002 and the Leadership in Energy and Environmental Design (“LEED”) rating system administered by the U.S. Green Building Council (USGBC).

Adapting Green Building to the Unique Needs of Healthcare Facilities

There are a number of unique challenges in accomplishing standard green building practices in healthcare facilities, including, among others:

• The need for hospitals and other healthcare facilities to be open with all systems functioning 24/7;
• The high level of dangerous waste produced by healthcare facilities;
• Patients’ increased sensitivities to chemicals and pollutants (along with related air circulation issues);
• The need for healthcare facilities to meet stringent regulatory standards which are not applicable to typical commercial developments; and
• The fact that healthcare facilities have different transportation expectations than some other places of business (e.g. very few patients can be expected to ride bicycles to the hospital).

As a result of these differences, green building standards for the healthcare industry have taken longer to develop than other uses. Until recently, the healthcare industry generally relied on GGHC in designing, constructing and operating a green building. The GGHC is a voluntary self-certifying program that borrows from, but is not formally connected to the LEED rating system. In a manner similar to the LEED system, GGHC gives a certain number of “credits” for each environmentally-friendly and energy-efficient characteristic incorporated into a building. GGHC includes metrics for both construction and operations, which allows it to be used for existing facilities as well as new construction. Because GGHC is a self-certifying system, healthcare entities who wish to use it must vouch for their own compliance with the program.

The USGBC’s LEED system is the most established green building rating system. It is also a third-party certification system, so in contrast to GGHC, it more rigorously scrutinizes a project’s green building features. Some healthcare facilities have elected to invest the extra time, money, and effort required for LEED certification. For example, the Dell Children’s Medical Center (“DCMC”) in Austin, Texas is one of the most dynamic green building healthcare facilities, as evidenced by recently becoming the world’s first LEED Platinum-certified hospital. DCMC has succeeded in accomplishing some amazing results, including, an onsite natural gas power plant providing 100% of the facility’s electricity; recycling 75% of the waste produced during construction; and ensuring that no location in the building is ever more than 32 feet away from a source of sunlight. Various challenges, such as the hospital’s 24/7 operation schedule, required DCMC to overcompensate in other areas in order to reach Platinum certification. The project’s architect admits that the challenges in obtaining certification under a system not designed for healthcare were “enormous,” but apparently worth the cost for the hospital, which predicts that its energy efficiency investments will pay for themselves within six years. There are currently less than 40 other LEED-certified healthcare facilities of any type across the country (including, for example, the
Boulder Community Hospital in Boulder, Colorado, which was the first-ever hospital to be LEED-certified, and the Jewish Hospital Medical Center South in the Louisville, Kentucky area). However, approximately 350 hospitals that are currently under construction are LEED-registered, indicating a desire to achieve LEED certification upon completion. Luckily, for those looking for something more rigorous than the GGHC, but more tailored to healthcare than general LEED certification, the USGBC will soon issue a new LEED for Healthcarerating system. The new certification system will incorporate feedback from pilot projects that used GGHC and will be open to a public comment period before being officially implemented.

Choices and Challenges

Those who are beginning the planning process for green healthcare facilities have three possible paths to choose from at this point: they can wait until LEED for Healthcare is rolled out, use traditional LEED, or use GGHC. All of these choices have positives and negatives: LEED for Healthcare will likely become the new industry standard, but its exact requirements are not yet clear, so healthcare entities might have to delay their projects or could be taking a risk by committing themselves to a program under which they may not be able to obtain certification. Traditional LEED is rigorous and well-recognized, but could impose unnecessary costs and difficulties when applied to the healthcare sector. GGHC has clear metrics that are already tailored to healthcare construction and operations, but does not carry the same weight as LEED since it is a voluntary, self-certifying system.

There are certain actions, no matter what green building rating system decision makers elect to utilize, that healthcare facility decision makers must take in order to limit unforeseen cost, risk and liability. It is important to make green building goals clear and specific early in the planning process. A team of experienced professionals, including architects, construction managers, contractors, lawyers and others, with quantifiable experience on past GGHC or LEED-certified projects is also highly recommended. These experts will be able to properly guide property owners with the unique issues that arise in connection with green building and thus help mitigate further risk.

There are multiple legal risks that green healthcare facility project teams should consider, some of which may include:

• Whether there any potential governmental incentives or other awards that might help supplement the costs of green construction;
• The proper detailing of liability for failure to achieve certain green standards;
• The evolution of labor laws regarding the classification of the construction tasks for new green building work, such as green roofs;
• Lease drafting that requires all tenants at the property satisfy certain green building operational requirements; and
• Avoidance of greenwashing, or misleading the environmental benefits of the facility or services being provided.

There are innumerable other legal issues associated with green building and leasing. As this is an emerging area, it is important to work with professionals in order to avoid unnecessary liabilities when implementing green design features or pursuing any form of third-party certification.

Conclusion

Green building design, construction and operation practices are likely to continue at an exponential growth pattern in the healthcare industry in the years ahead. It is critical for facility owners, managers and stakeholders to fully understand the unique issues that arise for green building in the healthcare arena and work with a team of professionals that can help advise and minimize the risks associated therewith.

However, what got me thinking a bit more seriously about the intersection of green building and labor law was an article discussing the California Labor Federation’s two-day conference held earlier this month in San Francisco, where topics across a number of workshops included green real estate development and the creation of green collar jobs. One of the plenary speakers, Greg LeRoy, whose topic was “the emerging green economy,” noted in his remarks that “there are only two reliabile predictors of job quality, unionization and job quality standards. [W]hile some green employers are open to collaboration, others pay poorly and fight unions.” Mr. LeRoy also pointed out that “there are no labor standards in the U.S. Green Building Council’s LEED system.” Is it possible that future versions of LEED might require some type of labor standard for the trades, perhaps by requring that owners who pursue LEED ratings enter into some sort of project labor agreement with local unions or pay prevailing wage rates? Could USGBC itself integrate certain labor requirements into LEED itself? I am not a labor lawyer, but it seems to me that with increasing emphasis, particularly here in New York City, for example, on educating the trades about green construction practices, these types of labor law issues will become increasingly common in the green building context. Any thoughts?

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