A Look Ahead Through Green-Colored Glasses

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in on Oct 25, 2016.

In 2010 I had the opportunity to address a number of professional organizations concerning the legal issues associated with green and sustainable projects. Of course, there are a myriad of potential legal issues with any project, some of which are heightened when the project is allegedly green or sustainable. I say “allegedly” because as we all know, green tag or labels may be deceiving.

Surprisingly enough, I had envisioned a great deal more litigation in this area for 2010. However, the past year offered a scant few cases dealing with green disputes; several of those cases were only tangentially related to a green or sustainable project and were more aptly described as run-of-the-mill contract disputes. Nonetheless, for those of us who enjoy a good fight from time-to-time, there is hope for the future.

For example, contracts continue to be prepared without due consideration of the project’s details. Contracts must properly reflect each stakeholder’s role in earning the desired level of certification and the contract must allocate that responsibility accordingly. Strong language is particularly important to identify party responsibility for each phase of the project, to ensure that errors and omissions coverage is available and unaltered and to avoid any unintended warranty or guarantee of certification. Further, contracts must clearly confirm that the selected design professionals have participated in other green projects and are familiar with sustainable design, green building rating systems and the corresponding certification process.

With respect to owners, I continue to preach the not-so-novel concept of avoiding legal problems by heading them off at the pass. Sophisticated design professionals with actual extensive green experience are limited in number. Therefore, due diligence by owners is essential in selecting the green-savvy project team. An experienced team is critical to executing a project that achieves the desired sustainable result, which includes verification that the intended use of specific materials, systems, and products will deliver the necessary level of performance. An improving economy will likely result in an increasing number of fraud claims dealing with owners’ promotional materials, “puffing” by design professionals as to their skills and product manufacturers cajoling architects to incorporate products which have not been thoroughly vetted.

Lastly, I foresee the potential for the absence of cooperation between developers and government, the result of which may be legislation mandating green building standards. Mandates developed without input from developers and design professionals are often less desirable and less effective than thoughtfully crafted voluntary incentives.

Fasten your seat belt. 2011 could be a very interesting year.