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.”
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 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’