Green Building Law Blog : Green Building Lawyer & Attorney : Shari Shapiro: Calliope Communications, LLC

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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I have been having numerous conversations over the past few weeks about the state of sustainability and the law.  From the sheer number of articles, conferences, and, yes, blogs on the subject, you would think that there would be lawyers nation (and even world) wide with thriving practices in green law.  The reality appears to be the opposite.  Even so-called green law experts are more theoreticians than practioners.  On this Earth Day, where are the lawyers?

1. Clients are ignoring the green components of legal transactions--A friend of GBLB who is an expert on green leasing told me that tenants and landlords are ignoring the green aspects of the leasing transactions. They nod interestedly at educaitonal sessions, and keep doing things the old fashioned way.

2. Green certifications is extralegal--No lawyers are required for LEED certification, for example,  and there is no appeal to a public authority for LEED certification.

3. There is no major federal green legislation--Environmental law did not take off as a profession until the early 1970s when major federal environmental legislation was passed.

4. Wasting resources is not illegal--There is no penalty for using too much energy or water.  Until there is someone who is regulating these areas, the amounts at stake in contractual relationship are generally  too small or to inconsequential to the whole project to litigate, especially in these resource constrained times. 

So what does this mean? Is there no future for green law? Should I pursue my medical license? 

1.  Resources are finite.  At some point, market forces will raise the stakes on energy, water and other commodities. When they become valuable enough, people will fight over access and usage of these finite resources.

2. Building regulation is coming--CALGREEN just imposed the first statewide mandatory green building code, and California often acts a precursor for where the rest of the nation will go in environmental regulation.

3.  Cap and Trade will change everything. Major federal regulation of carbon will cause litigation over the regulations themselves (there was decades of legal wrangling over the Clean Air Act and the Clean Water Act), the transactions, the requirements and so forth.

Maybe by the 45th anniversary of Earth Day, the field of green law will have developed.  

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