The Real Green Goblin – Emerging Legal Liability for Green Design Professionals and Contractors (Part 1)

Originally Published 2009

By Gary L. Cole AIA, Esq.

[DISCLAIMER: The following discussion is intended for general informational purposes only and is expressly not offered as legal or architectural advice, nor does it constitute advertising or a solicitation of any kind. And most of all – readers should always seek legal advice about their specific situations only from their attorneys, and architectural advice only from their architects.]

“Green” design and construction legal liability. It was, of course, inevitable that the legal profession would turn its curious eye in that direction – there’s just too much splashing in the water to ignore it. But before panic sets in, the news may not be all that bad, because in the fast-evolving world of “green” and “sustainable” design and construction, Ben Franklin had it right – an ounce of prevention truly is worth a pound of cure.

First the good news: by large, the legal profession hasn’t yet embraced the litigation potential of green design and construction the way it has, say, work-related injuries, deadly prescription drug side effects, or tobacco-related lung cancer – though a caveat to that statement will be discussed later in this post. It’s unlikely that you’ll soon see 2:00 a.m. commercials asking if you or a loved one have been injured or killed by poor site design or the loose prop of a wind turbine.

The bad news is that attorneys, especially those already practicing in construction law . . .  will soon realize that aside from green design and construction’s sometimes specialized and occasionally ill-defined vernacular, there’s no real novelty in the types of claims that might arise. No new frontiers of jurisprudence need be explored – a leaky green roof is still a leaky roof – whether it also requires regular mowing and landscape maintenance changes little from a legal perspective. Green design and construction is novel only in that, unlike traditional design and construction, it serves an environmental urgency beyond a basic programmatic utility. Roofs used to just keep buildings dry, now they cool cities and save polar bears, but they can still leak, and this is familiar territory to construction attorneys, regardless of a roof’s other design intent. But the good news is that the defensive tactics for emerging green design and construction claims are also well-established, though as yet not well vetted in this context.

The purpose of this Law/Ark discussion, which will be presented in several short installments, is to highlight the missteps that design professionals and contractors may make along the green path of good intentions which increase their exposure to later claims of liability when things go wrong – as they often do in construction. It will then look at ways that risk may be mitigated in advance and hopefully prevent green design professionals and contractors from becoming the poster children for precedent-setting lawsuits that could have a chilling effect on public acceptance of sustainable design and construction. There’s always a tipping point where the risk of something new outweighs its potential benefits, and markets are remarkably efficient in sensing when that point has been reached, and the shark, as they say, has been jumped.

And, while still maintaining Law/Ark’s objectivity on the issue, these post installments will also discuss how, contrary to their often unflattering TV and movie portrayals, when it comes to the new world of green design and construction, informed attorneys may be best at doling out Mr. Franklin’s well-known prevention dosage.

Part 1 – What Is Green Design and Construction Legal Liability?

In non-legal terms, most legal liability associated with green design and construction will arise from one issue – though it’s an issue with many faces – unfulfilled expectations. The legal vernacular for expressing this would be something along the lines of: “breach of contract through failure to perform according to express and implied representations and warranties.” But these claims have been made in construction conflicts forever – even the ancient Romans had laws on point. “Green” or not, the problem arises when connected parties in a development’s long chain of events – be it a manufacturer/vendor to an architect/contractor; or an architect/contractor to an owner/developer, represented that taking certain actions would result in certain outcomes – which outcomes did not occur as represented.

Again, there’s nothing novel about these type of design and construction-related disputes and most claims – but not all – boil down to some manifestation of this issue. With respect to any fellow attorneys reading this post, yes, I’m simplifying matters and there are many other types of claims that can arise in construction disputes – so stipulated. But in the case of green design and construction, the many manifestations of claims related to unfulfilled expectations will likely lead the pack if/when this type of litigation gains traction.

Regardless of the prosaic core nature of the claims themselves, getting to that core currently requires navigating a unique combination of broad environmental goals wrapped in the often vague and generalized movement terminology. The reduction of energy usage and carbon footprints to combat global climate change, while certainly worthy macro goals, does not exactly translate well at the micro level that’s required to prepare protective contracts which provide clear, realistic and defensible representations and warranties.

What exactly is “green” design and construction and how can its larger goals be accomplished without giving an old class of legal claims a green paint job and thereby discouraging markets from accepting the challenges of those goals?

Naming the Thing

To start with, a great deal has been written about the need to define “green” and “sustainable” in precise, fully-accepted ways that can be translated into clear contract language. I agree and disagree in part.

I agree that without greater precision in the vernacular of green design and construction, unfulfilled expectations are a certainty. Just naming something doesn’t make it so and fuzziness of expression often belies fuzziness of thought. The less poetically-inclined players in the market – real estate developers, generally – sense that instinctively. Development proformas tend to be unforgiving and are curiously silent in matters of “good intentions.” And fuzziness of expression/thought and well-publicized claims that derive from these shortcomings may lead to a lack of credibility and eventually disinterest in sustainable development – green design and construction could collapse inward upon its own perceived hollowness. Presently unseen by the design and construction industry, the groundwork for that perception may already be in place it might only take a couple successful lawsuits to, at the very least, slow the industry’s momentum. And, since perception is everything, defining key green design and construction concepts and vocabulary in a way that provides better legal protection to design professionals and contractors before the courts do so, is probably wise.

I disagree in part, however, because much of what I’ve read about attempts to define the terms “green” or “sustainable” seems to be relying on the misplaced hope of a successful Grail-like quest for magic words or phrases – an enchantment maybe – that will ward off claims of liability. This is naive and dangerous and the legal community would quickly pierce this verbal sleight of hand, words being the natural playground of attorneys. When a “green” roof leaks, for whatever reason, design flaws, material defects or improper installation – everyone whoever glanced at that roof is likely going to court – at least in the beginning. It won’t matter what color the roof was called or how noble the broader goals of reducing that building’s heat island effect or providing a high-rise downtown nature retreat for the building’s occupants, it’s still a leaky roof and the legal profession will move in swiftly to allocate blame.

A balance between the verbiage used in a project’s green marketing claims (form), and its real performance (substance), is at the core of the high wire act that either strikes that perfect balance between a design professional’s or contractor’s enthusiastic but careless risk, and the proper, responsible promotion of a new way of thinking and building. Using an accurate and supportable vocabulary to promote green design and construction is the first step in sustaining one’s business existence, which is always best way of accomplishing the somewhat loftier goals of the green building movement.

Having generally framed the issues, the next installment of this Law/Ark post will look at the specific causes and consequences of not heeding Mr. Franklin’s wisdom, what “prevention” really is, and how it can be used to reduce the legal exposure of design professionals and contractors in the brave new world of green and sustainable development.

[END OF PART 1 – PART 2 TO FOLLOW SOON]

© Copyright Gary L. Cole AIA, Esq. 2009

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