Air Conditioning Engineers—those associations haven’t
themselves been asked to certify whether the buildings
meet the requirements.
Of course, even if people sue, they’re likely to face
hurdles before holding a private certifying group liable.
The USGBC, for example, is a private organization that
has no legal obligation to approve any projects, give due
process, act quickly or anything else.
that provides policies to building designers nationwide.
As many as 10 percent of the 4,000 claims a year
Schinnerer handles involve some allegation of green
promises gone wrong. Often owners complain that a
green design feature backfired. For example, a college
recently claimed that solar shading created a hospitable
area for pigeons, which contributed to a campus outbreak of the fungal disease histoplasmosis.
“IT ALL COMES BACK TO REALLY UNDERSTANDING WHAT ‘GREEN
BUILDING’ MEANS. I DON’T THINK ANYONE WHO’S A LAWYER
IN THIS SPACE IS TRYING TO CAUSE TROUBLE.”
—STEPHEN DEL PERCIO
“It’s very difficult to come up with a way anyone can
maintain any legitimate suit against this sort of standard-setting.” says Daniel Slone, a Richmond, Va., lawyer
who represents the USGBC.
“The U.S. Green Building Council has been very,
very careful to make sure that its process of developing
the standards and applying them is robust, and that
there’s an opportunity for participants to raise concerns,
appeal, to make sure there’s been a very, very careful
consideration,” says Slone.
Nonetheless, he adds, the USGBC is not obligated
to certify buildings.
CONTRACTORS, VENDORS JOIN IN
IT’S NOT ONLY THE USGBC OR DESIGNERS AND BUILDERS
but also local governments that are in the crosshairs of
In one recent case, a coalition of water heating equipment groups and distributors of heating, ventilating and
air conditioning products sued the city of Albuquerque,
N.M., for enacting recent rules mandating that new
buildings either obtain LEED certification or meet other energy reduction standards. A federal district judge
in Albuquerque issued an injunction in October banning the city from enforcing its new building code, reasoning that the new codes are pre-empted by federal
Even if buildings meet all certification requirements,
designers and architects could still face lawsuits if the
construction doesn’t deliver the benefits that owners
expected it would, or if the green features result in hidden problems.
In fact, some owners have started complaining that the
same features that are touted as environmentally friendly end up causing other problems. Roof gardens, for instance, can contribute to mold problems in buildings.
Insurance companies are already starting to see claims,
though most settle out of court, says Frank Musica, senior risk management attorney with Victor O. Schinnerer
& Co. Inc., a Chevy Chase, Md., insurance company
Owners also have been disappointed when the
benefits of green buildings didn’t materialize. For example, some manufacturers of HVAC systems say that
people in buildings with better air circulation will be
healthier, which will lead to improved attendance. But
the Washington Policy Center, a think tank based in
Olympia, Wash., recently released a study showing that
absenteeism did not decline as expected at new green
schools. The study also showed that energy savings
were not as great as expected.
Slone says it’s unfair to blame developers for absenteeism when many factors play a role in whether people
stay home from school or work.
But Shapiro says that HVAC manufacturers might
be held liable if it can be shown that they promised
there would be fewer absences as a result of a healthier
SEMANTICS AN ISSUE
AN ADDITIONAL WRINKLE IS THAT PEOPLE TEND TO USE
the word green to mean everything from recycled materials to advanced air-circulation systems to improved
energy efficiency. The problem is that some of those
features are at odds with each other. For instance, ventilation systems require a lot of energy, so the quality
of air might be improved, but the energy costs won’t
Stephen Del Percio, a New York City construction
and real estate lawyer who publishes a blog called
GreenbuildingsNYC.com, adds that owners and builders can head off litigation if they are precise when drawing up contracts.
“It all comes back to really understanding what
‘green building’ means,” he says. He adds that everyone from builders to designers to architects will be better off by thinking through exactly what they expect to
accomplish at the beginning of a project, rather than
waiting until the building is completed.
“I don’t think anyone who’s a lawyer in this space is
trying to cause trouble.”