Green building law has arrived. Is your lawyer ready?

In the past few weeks, the Northland Pines Third Party LEED challenge has exploded, the Washington Building Industry Association sued the State of Washington to enjoin their energy code from taking effect, and a private lawsuit which could potentially turn into green litigation emerged onto the scene.  In other words, the wave of green litigation which I first predicted back in 2007 has arrived. 

What does this mean? 

  1. More third party challenges--For every building project, there are naysayers.  Some will see the Northland Pines challenge as a mechanism for attacking potential development, either during the development process by threatening a challenge, or after the development is completed by filing one.   
  2. Building interest group litigation mushrooming--If the BIAW challenge in Washington holds water, building interest groups nationwide will attack green building regulations where the only true path to compliance is through energy efficient HVAC equipment. 
  3. Private litigation with a green tinge--As people occupy green buildings, typical construction challenges emerge.  Expect these to incorporate challenges to the "greenness" of the building.

These suits will be complex, and will involve not only knowledge of LEED and green building, but also the energy codes and other ancillary regulations implicated in these suits.  Green building law has arrived.  Is your lawyer ready? 

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Mark S. Lentz, P.E., President, Lentz Engineering Associates, Inc. - June 16, 2010 10:25 AM

First, in lay terms, the Northland Pines School District was promised a "Ferrari" and given a "Yugo with a Ferrari hood ornament." The LEED Certification was the hood ornament which the designers point to to claim they delivered what they promised. However, if you were to put a real Ferrari next to a Yugo, even the untrained sys could discern the difference.

USGBC grants LEED Certification on the basis of an honor system after an expensive paper chase. It is not granted on the basis of actual design, review of construction documents or critical inspection of the facility. The designers of this facility falsely represented that the design of this facility met or exceeded very specific engineering criteria. The Northland Pines appeal was intended to expose the fact that the community did not receive either what was promised or what they paid for.

The larger tragedy is that USGBC did not see fit to do the right thing, and in doing so, further undermined their already rapidly declining credibility.

Second, I would like to correct a common, but widely held, misconception. Most people erroneously assum that the use of high efficiency equipment makes a building either efficient or "green." This only leads to buildings wasting energy very efficiently.

How efficient a building really is has much more to do with how and whether energy consuming systems (lighting, heating,etc.) interact with each other to recycle previously expended energy assets. This is not usually the case. Most buildings are designed to consume energy, not save it. Low grade heat energy generated by artificial lighting, equipment and people is considered a waste product because HVAC systems typically do not even try to make effective use of that resource. Therefore, they dispose of it. What typically amounts to about 85% of the energy used in the typical commercial building. No matter how efficient the heating and cooling plants consume their fuels, that energy is wasted.

The energy efficiency of equipment is insignificant compared to the efficiency implications of how that equipment is usually employed.

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