LEEDigation and the Real Risk of Building Green

LEEDigation is a new term used to describe “green” litigation related to the apparent failure of some building projects to meet green performance standards. Legal discussions highlight the risk taken by builders that agree to obtain a level of green certification but fail to perform as expected. In the referenced case, arguments ensued because the construction specifications prescribed methods and materials that did not meet the performance standards necessary to obtain the “green points” required for the certification. The project failed to meet energy performance requirements and deadlines that would have qualified it for substantial tax breaks and incentives. (Shaw Development vs. Southern Builders)

The contractor had agreed to meet a silver level of certification but argued that the specifications for the project prescribed products, materials and methods that were contrary to the performance goals. The contractor had foolishly agreed to meet performance goals without control of the specifications that would enable the completed project to perform as required. Actually, this is not a green issue but a lesson about the difference between prescribed and performance standards. All said, the potential for LEEDigation has many contractors wondering how to protect themselves.

The real risk in building green is the failure to meet expectations of the project requirements. What happens when green point requirements are overlooked or the proper verification and documentation is missed?

Strategies to avoid LEEDigation:

• Define clear responsibilities of Architect, Builder and Owner.
• Avoid  performance requirements.
• Establish clear prescriptive requirements (specifications).
• Develop a timeline and checklist to avoid omissions (schedule).

Green building and renewed interest in energy efficiency pose new challenges to the construction industry, typically slow to change its thinking. Not only do we need to update our processes to include the added steps required by green certification, but we also need to update our understanding of building science and integrated building systems; another interesting topic for discussion.