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

I have posted on many occasions about the importance of place in green building--green buildings on unsustainable sites are simply not green.  But it is never really true until the Grey Lady--The New York Times--says it is.  Today, on the Times' Freakonomics blog, James McWilliams had a nice little piece on the fundamental issue of building LEED buildings in an unsustainable, car-based infrastructure. 

Take the long view. From the moment of European settlement onward, American faith in Manifest Destiny has inspired aggressive development driven by land acquisition and individual choice. Sprawl started to become ingrained in the American character over two centuries ago and, as a result, middle America has inherited cities that value expansion over intensification.  To an extent, this vexed inheritance turns our cork floors and compost bins into empty expressions akin to the sun-starved solar panels adorning the Merritt Center.

What McWilliams does not acknowledge is the role that regulation and tax policy has had in developing the infrastructure the way it is. Two give just three examples--the mortgage interest tax credit encourages homeownership outside of the urban core. For many years, urban neighborhoods, the most sustainable, were red-lined--you simply couldn't get a mortgage.  Funding highways over mass transit means that more highways are built, making it possible to move further from the urban nodes.  Finally, funding schools through property tax assessments mean that inner cities with multi-family housing and greater rental concentrations will have less money to provide excellent education, driving families with children to the suburbs.

McWilliams uses the passive voice--" Sprawl started to become ingrained in the American character over two centuries ago "--as if sprawl simply appeared, like a cancer on the landscape.  Not so.  Regulatory and monetary policy implemented by elected representatives caused the unsustainable circumstance Americans now find ourselves in.  

 We have seen the sprawl, and it is us.

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As I mentioned here, there has been a lot of tongue wagging on the internet about LEED performance issues.  Yesterday, Rob Watson, USGBC Board Member and Greenerbuildings.com Executive Editor responded. The gist of his response is that critics of LEED should really be participating in improving it:

The thing that really pisses me off is when people who should be helping something like LEED succeed cut it down. The only thing that benefits is the status quo. So stop your whining and moaning and put your energy into moving toward what Elaine Gallagher Adams calls the seeds of the municipal carbon economy where LEED is playing a key role in getting buildings beyond code minimum.

Many of Rob's points are good ones--tearing down LEED without providing constructive suggestions for how to improve the problem is about as useful as throwing rotten tomatoes.  Also, critiques coming from those that are not engaged in the processes for developing the standards--be it USGBC, ICC, ASHRAE, etc.--may not be fully informed about the efforts that are ongoing to fix the issues, and those critics certainly are not participating in the hard work that is necessary to build something, which is much more difficult than tearing down what others have done. As Secretary of the Delaware Valley Green Building Council, member of USGBC's legal advisory board and participant in the ICC green building code team, I try to do my part in being fully informed and active in the process of creating great green building standards.

However, Rob takes a very harsh stick to the dialogue about LEED and building performance:

People need to stop pretending they are providing any insight on issues LEED needs to deal with. Honestly, anyone who thinks that the issues of energy use per square foot, how to get at operations energy though a design standard, how to make energy modeling more representative of what actually happens in a building, etc. haven't been discussed at LEED since 1995, needs to stop sniffing whatever it is they're sniffing. Really . . . it's bad for you.

There is an important role for analysis and critique in any complex process.  Not only do outside observers from different points of view pick up on things that participants in the process may not see, they may have constructive suggestions about how to improve either the process or the underlying problem. 

But even thoughtless criticism has a place.  It serves as an important temperature gauge for the institution about how well it is communicating its message, and where opponents to a given position may have a toehold.  The gun-toting, expletive shouting health care contrarians may not have much constructive to say about how to fix the healthcare system, but they gave a big indication of the fact that Obama's message was not being effectively received, and where the plans needed to be shored up. 

The New York Times article was, as Rob and I have noted, old news to those of us who have been working in this field.  But it gives the USGBC an excellent opportunity to highlight the efforts it has made, as Rob notes, for years to manage the energy issues, and to spotlight buildings which are performing well.  When the Grey Lady is choosing to report on energy performance, you know you have made it into the mainstream.  Now the USGBC should take its publicity--good and ill--and, like Paris Hilton, use it to promote the brand and move green building forward. As Oscar Wilde once said, "The only thing worse than being talked about is not being talked about."

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Although many green building experts have been discussing the issue of whether green buildings are performing up to their claims for some time, the mighty grey lady spoke on the issue this week and set the blogosphere humming. The New York Times article comes in the wake of the USGBC's announcement that it would begin to track the performance of LEED buildings after they have been certified, and potentially to revoke the certification of those buildings which failed to perform, which also kicked up a lot of discussion. On top of all this, ACE announced that it would begin to guarantee the certification of green buildings it was involved with.

These events have an important nexus--risk of liability.  If the USGBC tracks building performance, failure to perform up to the requirements now brings with it the threat of decertification.  In the past, no one was really tracking the claims and there was no consequence for failure, except PR embarassment. Now that design professionals guarantee achievement of certification, failure to do so brings enhanced contractual liability as well (although ACE seeks to limit its liability to a refund of its LEED administration fee, it remains to be seen if this limitation would hold, especially if the failure to acheive certification were due to the professional negligence of ACE).

To protect against the risk of liability, professionals turn to insurance.  As I reported here on Monday, Argo Insurance Brokers and Lloyd's of London are looking to fill this niche by bringing to market the first green professional liability policy for architects and engineers.  Among other things, the policy includes technical consulting, site selection, water efficiency, and other sustainable services as "covered services" under the policy. In addition, it "specifically includes coverage for guarantees and warranties of achievement of green certification."  Thus, through the Argo policy, architects and engineers can now manage their risk. 

On the whole I think the Argo policy is progressive and a great tool for design professionals looking to go green.  If I were an owner, I would want the professionals I engage to have this coverage.  However, I would like to see more explicit language in the policy regarding the "coverage for guarantees and warranties of achievement of green certification," particularly as it relates to performance after certificate of occupancy.  The Argo/Lloyd's policy is probably just the first of its kind in this area, and it will be interesting to see the policy language develop over time.

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