"Reasonably Relied Upon..." - The Growing Importance of Energy Modeling

Today's guest post was contributed by E. Mitchell Swann, P.E., LEED AP, a partner at MDC Systems

 

As a strong component of the sustainability initiative in buildings, energy use is rightfully taking its place as a leading metric in evaluating a building’s performance. Further emphasizing the importance of performance measurement is the expected roll out of an industry wide “Building Energy Performance” label which is intended to provide an objective comparison of energy use between buildings. Rating systems like Energy Star along with model energy codes look at both predictive energy use models and actual usage as crucial to determining a building’s true performance and rating. The USGBC’s newly issued LEED v3.0 rating system requires the initial certification, recertification and by extension the possibility of decertification of LEED buildings to be tied closely to comparisons of modeled and measured energy use over time.

 

In those rating systems where a project’s “end game” performance is evaluated against their ‘promise’ as presented in a predictive model developed during design, the quality of the prediction greatly influences the quality perception of the results.

 

On many projects energy modeling work is performed by a subconsultant to the design team or possibly as an independent member of the project team. The results of the modeling effort are extremely influential in making design decisions from site orientation to building envelope options to HVAC systems to control strategies. Clearly an error during the modeling stage can lead to major problems downstream especially with respect to energy use comparisons and possibly maintaining certification downstream.

 

But if an error is made, who do you turn to for redress? Obviously the first stop is at the door of the energy modeler. This might work in the independent team member scenario but not so well in the subconsultant situation. Dealing with a subconsultant to a member of the design team may require a ‘two stop’ stop. But what happens if the modeling consultant doesn’t have the liability insurance that design firms typically have? What if the error is not ‘caught’ until Year Two of operation and we discover that the system that was installed will never perform as modeled and the actual energy costs are expected to 15% higher than initially thought for the life of the building? What are the ‘damages’ incurred by the Owner? The cost of a building or system retrofit? The energy cost penalty for the life of the system? What about the engineer who reasonably relied upon the analysis provided by the energy modeler? If the initial model output is used to guide engineering and/or architectural designs on the project, is a ‘third party modeler’ providing design services? Do they need to be licensed as an architect or engineer?

 

These are just a few of the issues that can arise and while energy modeling has a fairly long history, it is common in the industry to consider models as a comparative tool used to evaluate design options, not to ascertain the precise amount of energy a building would consume in a year. The newly ‘codified’ need to compare prediction to reality would seem to introduce a new level of expected accuracy and with it potential exposure. Is this effectively a prediction (and promise?) of performance which traditional E&O insurance does not cover? Will insurance products need to be revised to accommodate this new potential risk?

 

Design professionals would do well to clearly define performance expectations and potential limitations on their design as well as key parameters and assumptions used in modeling facility operations. On evaluating performance downstream, there may need to be an ‘audit clause’ to allow the designers a chance to evaluate how the facility was maintained or operated and the impact on energy if there is a divergence between predicted and actual usage.

 

The importance of energy modeling and the importance of accuracy in modeling is growing especially if building ratings or certifications are linked to correlations between predicted an actual performance. Is this a good thing? Well, at one level it seems reasonable to require actual performance to be at or near what was “promised”. But it is also important to remember that construction is a complicated and multi-variable process with many inputs, pieces and actors. So a lot can happen that can impact final performance and it may be difficult to determine exactly all of the “whys”, “hows” and who if something doesn’t perform exactly as expected. And of course we all know how fickle the weather can be.

 

Great Article By Green Real Estate Law Journal

Stephen Del Percio does a great job of analyzing the current state of green litigation, or lack thereof, in response to my piece on the same subject from last week on the Green Real Estate Law Journal. 

He makes a particularly interesting point about the statute of limitations:

In my experience, plaintiffs will typically wait until they are up against the controlling statute of limitations before commencing a lawsuit. Here in New York, the applicable statutes of limitation for many of the causes of action under which green building liability may arise (such as negligence and breach of contract) range from three to six years. When you consider that LEED Version 2.2 only went live on January 1, 2006, many of the LEED-related green building claims that have been suggested to date remain well within the statute. This could be a significant reason why both LEED- and green building-related litigation will remain on the horizon for the near future.

Many thanks to Mr. Del Percio and Mr. Cheatham for their insightful thoughts sparked by my piece. 

More On Whether Green Litigation Has Legs

My friend Chris Cheatham over at Green Building Law Update has an interesting followup piece to my piece from last week on Whither The Green Building Litigation. He also has a picture of pinnochio. 

Green Roofing--Landscaping? Roofing? Controversy!

Non-unionized workers on a green roof project in Minneapolis have filed a claim with the NLRB, arguing that they are being paid as landscapers, not roofers, making $20 less an hour than their roofing counterparts.  Moreover, they claim that proper safety precautions are not being taken. 

An attorney for the workers this month filed complaints with the National Labor Relations Board (NLRB), alleging that Stock retaliated after they complained and tried to unionize.

The president of the Frindley Company, according to  the Minneapolis Star Tribune:

He defends paying them landscapers' wages, saying a lot of green roof work is landscaping.

Like unions refusing to install waterless urinals, there are a lot of potential labor relations questions which emerge with new green building techniques.

Green Building Litigation--Whither the Lawsuits?

Shaw Development v. Southern Builders, the first "green" lawsuit, caused a lot of legal handwringing in 2008, with many predicting scads of green building litigation to follow.  Now, almost halfway into 2009 we have seen...nothing.  I have a few theories:

1. Green building is a tiny (though growing) proportion of overall building--While very newsworthy, green building comprises only a tiny proportion of overall building.  According to McGraw Hill, just 2% of construction is green, although that looks to grow over the next few years. 

2. Owners are too afraid to measure their building performance--In order to prove breach of contract or failure of products, performance needs to be measured.  But if owners show that their buildings are not acheiving the energy efficiencies or cost savings or occupant health benefits promised, the owners themselves may be open to suits from occupants, investors, etc.  Better to keep head in the sand.

3. Economic downturn--As builders, developers and management companies struggle just to survive, companies do not have the extra capital to spend on expensive litigation.

4. It's just a matter of time--Green buildings are too new and the technologies have not been in place long enough to fail.  As more green buildings are constructed, more litigation will develop.

Any other theories? 

Part 2 of Regulating Green Series--7 Rules For Sound Green Regulations

1.  Have a clear intent

In Going by the Book, authors Eugene Bardach and Robert Kagan state, “A regulation requirement is unreasonable if compliance would not yield the intended benefits…” In other words, a regulation should have a clear intent--like increasing the number of high performance buildings or reducing greenhouse gas emissions or improving indoor air quality--and compliance with the regulation should acheive the intent. 

2. Evaluate extreme outcomes

Las Vegas instituted a tax cut for green buildings so sweeping and easy to qualify for that it threatened to cut a giant hole in the state's budget.  In planning regulatory mechanisms, regulators must look at a likely scenario of compliance and an extreme case to ensure that all outcomes are considered, and the extreme case is prevented. 

3. Carefully analyze utilizing third party green building criteria and certification systems

Many local governments incorporate third party green building criteria (and in some cases, certification) like LEED, NAHB-Green, Green Globes, etc. as the core of their green building regulations.  I will do a full post on this topic as part of this series, but regulators need to examine the pros and cons of choosing a third party system as a component of their regulations.  

4. Create measurement and verfication mechanisms

In conjunction with point number 1 above, compliance with the regulations should be measurable and verifiable.  Looking to decrease greenhouse gas production? Require reporting on energy usage.  Looking to increase green buildings in your municipality? Require receipients of tax credits to indicate what green components the credit enables them to add that they would not have done in the absence of the credit. 

5. Develop valid enforcement mechanisms

Washington DC has come under major criticism for requiring a performance bond which is forfeited in the event that a building fails to comply with the green requirements of the DC green building act.  Essentially, this is not what a performance bond has traditionally been used for, and the surety industry has expressed significant concerns over providing bonds for this purpose.  Another mechanism DC could have used was to levy fines, or withdraw (or refuse to issue) occupancy permits, if the project did not meet its green requirements.  

6. Check for state and federal preemption 

Last year, the HVAC industry associations sued the City of Albuquerque to prevent the city's green building code from taking effect.  They argued that the energy efficiency requirements in the green building code was preempted by federal standards for HVAC equipment.  In the course of the litigation, it came out that the city attorney had not checked for federal preemption. 

In addition to federal standards, many states have state-wide building codes which may preempt local municipalities' ability to require construction to conform to more stringent standards.

7. Anticipate litigation

The first envrionmental legislation was passed in the early 1970s. There is still litigation on the interpretation of sections of the Clean Water Act and the Clean Air Act.  The purpose of the judiciary is to interpret and clarify regulations, and this process is a normal part of new regulatory schemes.

When Green Goes Bust

Bankruptcy and forclosures pose a few unique risks for green building. 

One complication is the significant tax credits and other public financing involved in green construction. This week, Shaw Development LLC, the developer of Captain's Galley development  in Maryland and the plaintiff in what has been termed the first green construction litigation, declared Chapter 11 bankruptcy.  Stephen DelPercio at Green Real Estate Law Journal argues that the contractor responsible for lost tax credits (if they could be shown to have led to the bankruptcy) could be responsible for significant consequential damages including

decrease in sales prices during the course of the automatic stay that is imposed over the property, any other sales that were lost due to the bankruptcy reorganization, and associated professional fees and other carrying costs that the owner/trustee incurred during the course of the stay.

In addition to this risk, bankruptcy of green projects may be complicated by their connection to the renewable energy markets.  For example, a development installs a solar array and arranges to sell its renewable energy credits (RECs) to a utility. The utility uses the REC purchase to fulfill its mandatory obligation to purchase alternative power. If the development goes bust and no power is produced, the utility and/or state/local government may come calling.

Finally, green projects often involve the utilization of high maintenance components, like vegetated roofs.  If these facilities are not properly maintained due to bankruptcy or foreclosure, third parties harmed by poor maintenance (collapsing roofs, for example) may have nothing but an insolvent party for recourse.

Will the surety industry kill Washington's green building law?

Washington DC has one of the most progressive green building laws in the country.  Passed in December 2006, Washington mandates, among other things, that private buildings above 50,000 square feet submit a checklist of green features by 2009, and meet LEED NC 2.2 standards by 2012. To enforce the law, there is a bonding requirement for each project. 

Today's Washington Business Journal [subscription required, but you can get a synopsis of article here] reported that the surety industry is complaining that the enforcement mechanism is flawed: 

Under the new law, if a project does not meet the strict green requirements, the city would receive money from a performance bond that has to be posted for the project in an amount of up to 4 percent of the building costs, or $3 million. Those dollars would be paid into a new city green building fund aimed at helping implement the legislation.

But the bonding mandate has surety companies wondering which party in the project — whether the building owners, the contractors or the designers — must shell out for the performance bond, therefore bearing the risk of noncompliance.

Without support from the sureties, which finance bonds, it will be difficult for Washington to enforce its law because construction projects won't be able to acquire the required bonds.  If there is bond default, litigation will surely follow, funded either by the parties involved, or the surety guaranteeing the bond.  Alternatively, the surety industry may choose to sue Washington, as the HVAC industry associations did to Albuquerque in AHRI v. City of Albuquerque, to enjoin the legislation from taking effect due to the poor drafting of the legislation. 

Role For Attorneys In Building Green

Recently, I wrote at Greenerbuildings.com about how legal issues have largly been ignored by the USGBC.  I first posted an article about the legal considerations for green buildings in July 2007.  Below is an update to that article.

Green building has hit the real estate scene remarkably quickly, but little attention has been paid to the legal implications of this new area. As green building and ecological sustainability considerations are becoming more prevalent, new regulations are being enacted by local governments around the country and old regulations are being adapted to embrace green building practices. State, local and federal dollars are being made available for green building projects through tax incentives and grants. Insurance companies and financiers are making products and instruments for green building projects available. As a result, there are new legal issues to consider when embarking on a green building project, including: drafting construction and design contracts that incorporate green building standards; navigating the local building and zoning approvals processes and securing public financing; negotiating with insurance and financial institutions and resolving disputes over green building projects that fail to achieve their sustainability goals.

Green building projects large and small must obtain permits from local governments, but the regulatory environment is in flux. In many places the zoning and building codes were developed in response to the health and safety issues of a century ago, and certainly not developed with green building in mind. In others, due to lack of action on the federal level, local governments are creating new regulations to encourage sustainable development. As old regulations are being adapted to new technologies and new regulations are developed, attorneys can provide critical guidance on the local regulatory landscape as part of the planning for a green project.

Furthermore, private and government entities are providing significant financial incentives to encourage green building. For example, Gov. Edward G. Rendell's newly released energy independence strategy earmarks $150 million ($50 million for grants; $100 million for loans) for green building projects. Fireman's Fund offers discounted pricing for building owners who commit to greens standards, and provides specialized insurance to allow for repair or replacement of green building projects in the event of a loss. Lawyers have a unique role in identifying and securing access to financial incentives and risk management tools.

Participants in the development process will require new contracts to ensure compliance with green building goals. Most of the entities establishing criteria for the performance of green building are private, nonprofit organizations like the United States Green Building Council (USGBC). Many local regulations and incentives for green building are directly linked to these certifying criteria, particularly USGBC's Leadership in Energy and Environmental Design (LEED) standard. If a project must achieve a certain LEED or similar rating to qualify for funding or approval, the construction and design contracts should reflect that ambition.

Finally, although the green building movement is in its halcyon days, new expectations will inevitably lead to conflict. A multimillion-dollar development project will fail to gain the LEED credits required to secure a government grant, and litigation will doubtless ensue.

These are some of the legal considerations in building green. Considering the legal issues should not be seen as an impediment to green building, but rather as a way to manage risk and to proceed with a smooth development process.

Parts of this post were previously published in the Legal Intelligencer.

New Green Building Litigation In The Offing--Shade Trees v. Solar Panels

The LA Times had a story about a neighborly spat over shade trees v. solar panels. Apparently, the Shade Control Act in California prevents shade trees from blocking more than 10% of sunlight from a solar array:

It protects homeowners' investments in solar panels, which can cost tens of thousands of dollars. Property owners whose trees block the sun from more than 10% of their neighbors' panels can be fined as much as $1,000 a day if they refuse to trim them.


Although GBL has not heard of this particular strain of litigation before, NIMBY issues are not new to solar installations. See here for a story on local zonign laws which originally prevented Al Gore from installing solar panels on his Tennessee home.

Scooped! Decision in AHRI v. City of Albequerque

I've been working too hard lately on other projects, and Steve Del Percio over at Green Buildings NYC did a nice post on the decision in AHRI v. City of Albequerque. Bad news for green building legislating municipalities.

Steve's post is here--http://www.greenbuildingsnyc.com/2008/10/08/district-court-judge-grants-injunction-barring-enforcement-of-albuquerque-green-building-code-legislators-unaware-of-preemptive-federal-statutes/

City of Albuquerque Suit--UPDATE

In July, I first wrote about the HVAC indistry associations suing the City of Albuquerque to invalidate Albuquerque's green building codes in one of the first instances of green building litigation. The HVAC plaintiffs filed a Motion for a Preliminary Injunction to prevent the City from enforcing the green building codes, and a hearing was held yesterday. I spoke with Doug Baker, attorney for the HVAC plaintiffs, who felt the hearing went well. His team of attorneys argued that Albuquerque should be preliminarily enjoined from enforcing the codes because they were preempted by Federal law, and that Albuquerque's attempts to amend the code to circumvent preemption were unsuccessful. Mr. Baker told me that the judge expects to rule on the preliminary injunction motion tomorrow. Stat tuned.

Albquerque Green Building Litigation--Column on Greenerbuildings.com

I wrote an extended column on the Albuquerque green building litigation which was published by our friends at greenerbuildings.com.

Please read it here--http://greenerbuildings.com/column/2008/07/11/open-floodgates-the-era-green-building-litigation

Green Building Litigation Hits In New Mexico

Well, I've been writing for a while that the green building litigation wave would hit, and it has. A coalitiion of industry groups and local companies has filed a federal lawsuit claiming that Albuquerque's green building code is pre-empted by federal law. The suit claims, in essence, that Albuquerque's code has set energy requirements for certain appliances like air conditioners "that are already covered in federal law and Energy Department regulations". http://www.abqjournal.com/news/metro/080732metro07-08-08.htm

I am currently gathering intel on the suit and will post more later.

Washington Green School Fails To Live Up To Promise

An interesting article on the Washington Policy Center Blog about a green school that has failed to live up to its promises of reduced absenteeism and higher test scores. http://washingtonpolicyblog.typepad.com/washington_policy_center_/2008/06/another-green-s.html

This is exactly the type of situation which may lead to liability for the professionals involved in the project. Were representations and warranties made regarding the benefits of the green building? By whom? Who is responsible if the building fails to live up to those warranties of performance?

Green Litigation--The Next Wave Of Green Building

As I sit here today, I will guarantee that the next year will bring the first wave of green litigation--litigation over buildings that fail to live up to their green billing. For example, in Australia, the Melbourne City Council's new state-of-the-art office building, which was "green star" certifiied, many of the green features do not work. http://www.theage.com.au/news/national/civic-showpiece-failing-to-deliver/2007/08/28/1188067111145.html The daylighting proved too dim for the workers' needs, a greywater system was not operational. Worse still, some are causing active issues, like allowing legionella into the cooling system.

Who is to blame when the green features fail? Will the contracts among the relevant players--architect, general contractor, developer, commissioner--be robust enough to allocate the liability? I doubt it--and lawyers, judges and juries will be introduced into a brave new world of environmental litigation. With new technology and lots of hype comes broken promises--and with them, litigation.