Could LEED Litigation be Happening Here?

Welcome guest poster, David Scott, Esquire.  I asked David to write a post about why there hasn’t been much LEED litigation.  As a fellow lawyer and LEED AP, I anticipated a slew of lawsuits.    However, like David, I am still waiting.  Here is David’s response:

At one point in the immortal comedy Caddyshack, the character Judge Smails looks to the protagonist Danny Noonan and expectantly beseeches “Well … we’re waiting!” The same sentiment could characterize the feelings of many in the legal community about green building litigation (also referred to by the painfully clever portmanteau “LEEDigation”).

 Where is LEEDigation?

Notwithstanding many breathless proclamations that the rise of green building will coincide with the rise of green building disputes, the litigation storm has yet to hit. Of course there have been a smattering of cases involving LEED projects. In the ubiquitously-cited Shaw Development v. Southern Builders, the project team members found themselves on the business end of a lawsuit after the owner lost a tax incentive due to the project’s failed to timely secure LEED certification.

There have also been a few other cases involving bid protests, zoning amendment approvals, variance decisions, property tax appeals, antitrust allegations, and federal preemption claims related to green building codes. But most disputes simply involve traditional legal issues that just happen to arise on green building projects, as opposed to the dispute being causally related to the green nature of the project.

There is a compelling rationale behind the alarmism. LEED and other green building rating systems are new, different, and change the way things have “always been done,” and that’s typically a breeding ground for conflict. So why isn’t it lawsuit Armageddon? Different theories abound.

The AIA and ConsensusDOCS now offer model green contracts that can help more clearly define the parties’ rights and obligations. Growth in the market for sustainable materials means fewer shortages (or complete lack of availability) of low-VOC paint, flooring, and other LEED-compatible products that could cause scheduling hiccups.

From this litigator’s perspective, most disputes are caused by lack of communication, so maybe the essence of collaborative design lends itself to resolution of disputes before they take on a life of their own.

Whatever the reason, it’s still not open LEEDigation season.  Got your own thoughts or perspectives on green building disputes, or the lack thereof? Share a comment and we can talk it out.

Anna, here.  David, I have one more question.

What About Green Building Product Litigation?

To continue the conversation, I asked David with everyone jumping on the green bandwagon, what about products that fail to live up to their claims?  He responded as follows:

“Although I haven’t seen any product-related suits specifically related to energy promises, the first-ever LEED Platinum building was the subject of a lawsuit just last year.  The Chesapeake Bay Foundation (owner) desired that the wood beams for the project not be treated with arsenic or other chemicals that could leach into the bay.  An affiliate of Weyerhaeuser supplied certain wood members used in the building, which the architect specified would be exposed to the elements.

Subsequent inspections revealed that the exposed beams were rotting, prompting a lawsuit by the Foundation against all involved.  I’m unable to determine the current status of the lawsuit because the Circuit Court’s records for the case are not available online and I have not seen any news or commentary since the initial reports of the suit.  Some have opined that this case is more about a manufacturer or supplier providing faulty materials than it is about green building.  I think that could be argued both ways.”

For a good commentary about the suit,  see here.

Greenwashing  with Claims of Products Being LEED Certified:

David brought up another point that irks me to no end.  He stated,

“[t]here have also been some claims related to greenwashing and/or products that hold themselves out as ‘LEED certified,’ which of course is a falsehood because products cannot be LEED certified.”

You can’t imagine how many times I have explained to companies you can’t put on your website that your products are LEED certified.

Guest Poster Information:

David Scott

David Scott helps companies resolve business disputes (green or otherwise). One of the only attorneys in the country to be a LEED AP and a Million Dollar Advocate, David is the co-founder and editor of Ohio Green Building Law.

Join the Conversation:

• Why do you think there hasn’t been much litigation?
• In the LEED process, where do you think there would be litigation?
• What advice would you give clients who are thinking about getting their building certified?
• What advice would you give manufacturers who tout their energy efficient products?

Photo by Bose d’Anjou’

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You know why Abe is smiling? Because America has a bright future ahead of it.  We will get out of our economic rut and green building is the answer. Green building will create jobs and spur the economy to recover.  Right now  Congress has taken the lead and there are several green building bills pending.  Although the  USGBC’s  press release was entitled “the USGBC’s top 10 list,” in reality, the list comprised of its  top 20 green building bills pending or enacted by Congress.  At the top of the list was The American Recovery and Reinvestment Act.  The list included  nine pending bills in the House and ten bills in the Senate.

“With our crippled economy, continuing energy crisis, and changing climate, Americans need timely and effective solutions to set a new course for how we use and think about energy,” said Sen. Snowe. “Energy efficiency has emerged as one of the most effective and expeditious actions that can be taken to preserve valuable resources for producers and consumers. I am pleased to work with Senators Feinstein and Bingaman to build upon the success of past taxcredits and provide critical energy efficiency tax incentives that will spark innovation in our housing and commercial building sector and pave the way for economical and environmentally-conscious living.”

The list is as follows:

In the House of Representatives:

• The American Recovery and Reinvestment Act – Public Law
• The American Clean Energy and Security Act – Henry Waxman (D-Calif.) and Ed Markey (D-Mass.)
• The 21st Century Green High-Performing Public School Facilities Act – Ben Chandler (D-Ky.)
• The Expanding Building Efficiency Act – Dave Reichert (R-Wash.)
• The Property Assessed Clean Energy Tax Benefits Act — John Sarbanes (D-Md.)
• An Act to Enhance Private Financing for Clean Energy Technology Deployment – Steve Israel (D-N.Y.)
• The Energy Efficiency Modernization Act of 2009 – Mary Jo Kilroy (D-Ohio)
• The Water Accountability Tax Efficiency Reinvestment (WATER) Act – Michael Coffman (R-Colo.)
• The Livable Communities Act of 2010 – Ed Perlmutter (D-Colo.) **pending introduction**
• The Federal Personnel Training Act of 2010 – Russ Carnahan (D-Mo.) **pending introduction**

In the Senate:

• The Clean Energy and American Jobs Act – John Kerry (D-Mass.) and Barbara Boxer (D-Calif.)
• The American Clean Energy and Leadership Act – Jeff Bingaman (D-N.M.) and Lisa Murkowski (R-Alaska)
• Energy Efficiency in Housing Act (EEHA) of 2009 – Sheldon Whitehouse (D-R.I.)
• The Livable Communities Act of 2009 – Christopher Dodd (D-Conn.)
• The Expanding Building Efficiency Incentives Act of 2009 – Olympia Snowe (R-Maine)
• The School Building Fairness Act – Tom Harkin (D-Iowa)
• Clean Energy for Homes and Buildings Act of 2009 – Jeff Merkley (D-Ore.) and Richard Lugar (R-Ind.)
• The Energy Efficiency Modernization Act of 2009 – Michael Bennet (D-Colo.)
• The Water Accountability Tax Efficiency Reinvestment (WATER) Act of 2009 — Mark Udall (D-Colo.)
• The Federal Agency Energy Efficiency Improvement Act of 2009 – Susan Collins (R-Maine)

For a brief review of the bills or laws, see here.  For more detailed information regarding any of the above bills, search here.

According to the USGBC,

“Buildings in the United States are responsible for 39% of CO2 emissions, 40% of energy consumption, 13% water consumption and 15% of GDP per year, making green building a source of significant economic and environmental opportunity. Greater building efficiency can meet 85% of future U.S. demand for energy, and a national commitment to green building has the potential to generate 2.5 million American jobs.”

My take?  Put America on an energy diet by putting Americans to work to make this a reality.   Many of my readers know that I am a LEED AP (new construction.)  I  can easily walk around a building and see dollar bills literally fly out the window from leaking doors to lights kept on all hours of the night. Don’t get me started about what I have seen in the trash or the paper waste.  Smoke just comes out of my ears.  (By the way, if you want to save green and want a diet for your businesses or building, hire me.  I am not talking about the South Beach diet.)

How many of you have school age children? It always amazes me when I see windows open in the schools in the freezing winter since their heating systems are operating inefficiently. Or I call it the Christmas light display at night. How beautiful the building are at night all lit up, but at the cost of our environment.  Many of our schools are in desperate need for retrofitting.

“Our country will rise and fall based on how we educate our children, and study after study shows that where children learn has a huge impact on what they learn,” said Rep. Chandler. “Not only will this bill begin to fix our crumbling public schools, but it will create local jobs that cannot be shipped overseas, save energy, and during these tough economic times, make a significant long term investment in our country’s most valuable resource, our children.”

Our children are our future.

So, readers, what are your thoughts about any of the above bills?

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Tribecca Green in Battery Park City in NYC

Update:  12/9/2011:   LEED changed in 2009 after I took the exam.  I updated my resources for you.  

That “week after” title seems a little mysterious for those of you who don’t know what the LEED AP exam is. I can assure you that it was not a hot, passionate experience that left me with warm memories. Just the opposite in fact. I was left with a headache that has lasted two days, brain fog (which might be due to hormones), and a sense of what am I going to do now when I don’t have to spend oodles of hours studying?

Are you wondering what the heck I got myself into, which could cause this much discomfort? I just passed a grueling exam testing me on the procedures of certification of a new commercial building to obtain LEED green building certification. Sexy. No. Interesting? Not to the public in general. Just to those of us who think subfloors, low flow toilets, and low voc adhesives are really cool. Some would even say discussing the U factor of windows and orientation of a building is right up there with talking about Paris Hilton. Well, a few people.

So what is all this LEED stuff and no, it is not synonymous with a place in England. Here is a condensed history of this certification. The United States Green Building Council was formed in 1993 to transform the building industry into one that creates high performance, energy efficient, sustainable building.

According to the USGBC’s website, over 3 billion square feet of buildings are in compliance with the USGBC’s LEED standards. What is “LEED” (Leadership in Energy and Environment) about?

“LEED is a voluntary, consensus-based national certification system for developing high-performance, sustainable buildings….”

“Based on well-founded scientific standards, LEED emphasizes state-of-the-art strategies for sustainable site development, water savings, energy efficiency, materials selection, indoor environmental quality and design innovation. LEED promotes expertise in green building through a comprehensive system offering project certification, professional accreditation, training and practical resources.”

So, in a nut shell, in order to obtain LEED certification, the construction of a new or renovation of  building  has to follow a bunch of standards.

Back to the test. I wish I could tell you that I was just over exaggerating, but unfortunately I am not. I thought studying for this test would not be that hard for me. I already understood most of the principles of green building, having done it myself with my own home. I opted to earn certification for new commercial buildings since I find building commercial buildings fascinating. Commercial building incorporates some amazing technologies and ideas that homes do not. (I know. Whatever turns you on.)

Even during the class I took, nothing was that hard for me to understand. I rather enjoyed listening to a veteran architect and engineer provide insight into the certification of a building.

So, when people asked at the end of the class, what you need to know for the exam, one of the instructor held up a thick book of over 400 pages and said “know what is in this book.”  What did I get myself into?

I hadn’t studied for anything in about 20 years. The last exam I took was the bar exam, but at least I had three years of law school, an intensive preparatory class spanning several weeks, and practice exams. With this certification, all I had was a 400 plus page book with a lot of facts, calculations, and technical information.

So, I dug in and started reading, taking notes, and kept thinking how was I ever going to memorize all of these formulas, facts, and situations and apply them to the real world. Again, I question myself, what did I get myself into?

I knew the only way I was going to pass this exam was to take practice exams. This is how I passed the bars in three states.  Here are the sources I used to study for the test:

Green Exam Academy:   When I prepared for the exam, the website, In the Leeds, was invaluable.  It was created by an architect, Pat Connors, who took the test. He had links on his sites for forums, condensed charts, helpful hints, and other information.

Since then Pat has created Green Exam Academy and created several study guides for both the LEED exam and the green associates exam.  He now charges for the guides and provides sample.  If the guides are anything like I used, they are well worth the money.  If you use his guides, please let me know in the comments below your thoughts.

Green Exam Prep:  They offer 400 test questions (The company offered 320 questions when I took the exam.) which I took almost 4 times. I liked the exams because they explained their answers or referred you to a specific section of the book.

In addition, they offer 700 test questions for the Green Associate.

When I took the real exam, I was prepared for how the questions would look and even some of the questions were similar but not many. The idea of taking these exams was to force me to learn the concepts, which I did.

In addition, the Green Exam Prep tests taught me to read the questions carefully since they were always trying to trick you in some way to get the wrong answer.

University of Florida LEED resources: I downloaded their free 47 page condensed version of the book and read this over and over again. In addition, the site has free flash cards and quizzes. I took all the quizzes.  However, UF has not updated their materials.

Colorado Study Guide: A lot of people use this guide and it has an 80 question test associated with it. If you used this guide, let me know your thoughts. Apparently, it does a much better job in explaining the registration procedures and CIRs (Credit Interpretation Requests) than the actual book handed to me in class.  This organization did update their study guide to for LEED v3.

Also see USGBC’s registration, certification, and CIR information.

ARE Forum: This is a great forum for LEED questions. Go to enter forum, and accept the terms and conditions. Then, go to the section entitled, “ENTER LEED Topics.” I downloaded an 11 page condensed sheet of all the credits by LEED AP user, manincellv. However, it is based upon the old LEED code.  There is still good questions on the site to clarify issues you may have with the LEED credits.

Green Step Education:  They have a free 35 question sample exam for Green Associate certification.  (Note, when I took the exam there wasn’t a “green associates” certification.)

I studied off and on for two months, and then spent a month intensively studying. I did not have a study group which is recommended. I burned some very late nights.

The day before the test, I scored 90% and above on the practice exams, I knew my credits backwards and forwards, learned them all in order and by name since I was told, they don’t tell you the name of the credit. (Incidentally, there are 69 credits)

The test was online and was given in a room with cubicles with other people taking a multitude of different certifications. I was so nervous when I took the test. I did not want to fail because I studied so hard AND it would cost another $400 to take the test again.

The first question threw me and I knew I was in trouble. The test was harder than I could have ever imagined. I thought I would have to just apply what I know. Wrong. Not only did they want me to apply what I know but they asked questions of the most minute details or small nuisances.

Am I glad I took the Green Prep exams?  Yes. I learned a lot from those tests. However, neither the Florida exam nor Green Prep exams asked the level of detail that the LEED exam did.

I had 20 out of 80 questions that I was not sure about the answers. It took me almost 1 hour and 40 minutes to take the test. Normally, I would fly through the Green Prep tests in an hour. The last 20 minutes I tried to go back and review the questions, but I ran out of time.

At the end of the exam, I just sat there holding back the tears because I was sure I failed. I did not study enough of the technical implementation (ie baselines submittals) and concentrated on the intent of the points and how you submit for certification of the points. None of my condensed sheets went into that detail. I could swear that they must have asked a dozen question just on the administrative end of submitting and registering for certification, which the USBGC book did a poor job of explaining.

They asked for my comments before I knew my results. I responded by saying that I thought the questions were nit picky and did not test my ability to integrate the points together to earn certification. I was angry because I studied so hard and felt like a bunch of people wrote these exams so people would fail.

Then I pressed the button and the screen went blank as if it was tabulating. It was the longest 30 seconds of my life. Up on the screen popped my score of 182 out of 200. You need 170 to pass. I was shocked. It is a scaled score so I have no idea how I got that score. My lowest percentage was in technical ability (64%). The other 3 parts ranged into the 80% and high 70’s %.

Unfortunately, you don’t get to see the mistakes you made, so you can learn by them. I did remember many questions, and went back to the book to see my mistakes. Most of what I found, I had missed.

A couple days after the test,  I was unable to focus and get anything done. I was really burnt out.

What is next for me? I would love to work on a team to learn since I don’t care what you do in life; experience is your best teacher. Believe me what they teach you in law school is only a small part of what it is like to practice. Since I am not with an architect or engineering firm this might be challenging.

I met a delightful architect who was taking the exam at the same time as me. When I told him I was a lawyer, he exclaimed, that this test must have been hard for me. As an architect, he is exposed to more of this information then I am. I can’t imagine someone who is not in the building business taking this exam. Thank goodness for my home experience.

Before you decide to bookmark this article, and come back to it later when you have time to study, the LEED standards are changing in 2009. See the article by Tristan Korthal Altes, Managing Editor of BuildingGreen, regarding the changes expected for previously and future designated LEED APs.

Other materials that you might want to use:

• High Performance School Design: a free online course to help you learn sustainable design. Via BuildingGreen from Mary Lea.

• Other test materials on Innovations, Green Building Solutions with Simplicity: Caveat some of the test are dated 2005 and the new construction manual has been updated since then.

• When I took the test, I took the practice test by Tristan Korthals Altes, Managing Editor of BuildingGreen.  Since the test was based upon the old system, the link is no longer working.  However, Building Green started a site called LEEDuser which is great for questions about LEED credits.  It is a great community site for help with navigating through LEED projects.

Good Luck! Let me know what sources you found helpful. Was I the only one who thought the questions were really picky?

Join the Conversation:

• Which free study guides did you find helpful?
• What paid study guides did you find helpful?
• Any classes you liked better than others?
• Did you find the test picky like me?

Photo of Tribecca Green in Battery Park City in NYC by Phillip Ritz

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 I usually do not post other people’s articles but I have a lot of respect for Preston Koerner of Jetson Green.  His website is dedicated to featuring green building all over the world.   In describing his website, Preston states,” [g]enerally, I try to focus Jetson Green on modern + green building.  Specifically, I try to flaunt the business case for green building.  Sometimes I’ll delve more into the green building than the modern, and vice versa.” 

His posts are concise, informative, and easy to read.  In addition, his photographs that accompany his posts are clear and fully illustrate his topic.  He is a one man show and does not have a slew of writers to help him unlike many other green websites out there today.  His website was recently voted one of the top ten up and coming website by the folks at Lighter Footsteps, a green online magazine dedicated to sustainability.  Go preview Jetson Green and I am sure you will enjoy his website.

I really liked an article on his site regarding the first LEED west coast residence. Preston gave me permission to reprint his post.  Although, Preston’s post is dated February 14, 2007, this article is a little dated but very informative for those wishing to build green.

 Tom Kelly with Neil Kelly Company, as the general contractor, built one of the first LEED house on the West Coast.  The name may seem familiar to you because Neil Kelly Company started  Neil Kelly Cabinets, one of the largest eco-friendly kitchen cabinet makers in the country.  I hope you enjoy this article as much as I did. 

February 14, 2007

                                  Nick Garibbo, Photo Design, 2006

The LEED-H Silver Kelly Woodford Retreat Near Mt. Hood, Oregon

As one of the first residential LEED homes on the west coast, the Kelly Woodford home is blazing a trail for the future of residential construction.  In addition to its USGBC certification, the home is “net zero energy use” and Energy Star certified.  The 2,000 square-foot, three-bedroom/two-bath retreat has a great view of Mt. Hood and some pretty impressive green features.  Tom Kelly and Barbara Woodford built the home as a family getaway (with the Neil Kelly Company as general contractor), but they’ve also made the home available half the year to Neil Kelly employees to enjoy. 

It’s important to note that some green features work better in one location than another.  Localization is key, not only for the carbon impact, but for what works due to the local weather and climate (i.e., Californians may build sans AC, but that won’t fly in Texas).  This home has an amazing slew of green features, so I’m just going to throw them out:  net-metering photovoltaic panels; south-facing windows + passive solar design to reduce heating/cooling requirements; natural ventilation and proper solar orientation; solar-powered hydronic radiant floor; foot thick SIPs (structural insulated panels) for the roof to insulate against the winter chill; Energy Star-rated appliances; 16 SEER heat pump; CFL lighting throughout the house; two Sterling energy recovery ventilators to keep the air fresh; clean air filtration system; internal finishes from American Clay Plaster, Rhodda Paint’s Green Seal Horizontal line, and Yolo Colorhouse paints; FSC-certified lumber products; concrete with a high percentage of fly ash; 20-30% recycled steel roof with a shingle appearance; wheatboard and reclaimed lumber bath + kitchen cabinets; and recycled counter tops.  That’s just a few green features.  From beginning to end, it’s clear the entire process elevated sustainability to #1.   

Kelly remarked about the home, “When our family, friends and employees enjoy their time here, we want them to know they are living with nature, not in competition with it.“  Kelly’s serious, too.  He drives a bio-diesel fueled car and thinks residential building is going the direction of green.  Don’t you agree?!
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