The Real Green Goblin – Emerging Legal Liability for Green Design Professionals and Contractors (Part 2.1)

Originally Published 2009

By Gary L. Cole AIA, Esq.

[NOTE]: The voice employed in Law/Ark posts is intentionally non-legal. Herein, you will find no wherefores. And, while I welcome and warmly appreciate the readership and comments of my fellow attorneys, these posts are written mostly with Law/Ark’s other readers in mind – those of you out there responding to your passions and answering your callings by designing, building and developing green projects.

And, despite the sometimes playfully polemical tenor of these posts, they’re not intended to discourage you from that pursuit, but, rather, to encourage you to pursue them with the proper forewarning and forearming.

Part 2.1 (Part 1 was posted May 18, 2009)

This is Part 2.1 of the “Green Goblin” Series, of which Parts 2.2 and 2.3 will follow shortly. The series will wind it all up with Part 3, which will address specific legal and design/construction practice approaches for avoiding the pitfalls discussed in the series.

The Green Goblin series can be summarized in one statement: “unsupportable claims about the performance of “green” design and construction may inspire a new understanding of the American legal system by those who make such claims – as defendants.”

Part 1 of this series touched on something I called “unfulfilled expectations” in green design and construction – essentially, what was expected did not occur, and/or what occurred was unexpected. Unfulfilled expectations is a simplified way of referring to some manifestation of a “breach of contract.” Breaches of contract can arise . . .  by violations of express terms – as in writings, or, even by implied terms. Either way, someone’s not happy with an outcome – in this context, most likely a client who believes they were deliberately mislead by the representations of their design and construction professionals about the performance and/or value of their new green project.

But wait! some readers are thinking indignantly – I would never misrepresent a design! And, as an architect, I agree, you would probably never do that intentionally. Architects and other designers are many things, but charlatans only very rarely – it’s just not in their DNA. But, as this series of posts explores, green design and construction is particularly vulnerable to claim-making on a whole new level –a global level. And, as an attorney, I also know that when the finger pointing starts, what was done intentionally or unintentionally can sometimes matter only slightly under the hairy eyeball of the law. Or, it’s the crux of everything, depending on the facts. But what is deeply encoded in the double helix of most architects and other designers is a yearning to create something wonderful – a longing to make something from nothing and delight the world. And therein lurks the slumbering danger for green design and construction professionals – the desire to please an authority higher than the client and the project’s program – which higher authority may, or may not exist.

It starts in school. Design schools have their shortcomings – most notably in business education – but failing to imbue their acolytes with a sense of unbridled idealism and religious certainty and then cursing them with cynicism isn’t generally among them. That comes later – when rosy idealism runs headlong into the hard, sharp corners of business reality. And when that happens, designers have a choice: retreat into the warm and cathartic refuge of imagination (and blissfully ignore the risk), or, accept that the design profession is like many things – pleasant enough if done right, but always subject to the tedious business of balancing idealism and risk. And, at least as far as construction law is generally concerned – also subject to the requirements of the client and the project first, and other callings second, if at all.

And this is the dilemma for some green design and construction professionals – the ones who are most vulnerable to legal liability – how to achieve a balance between serving the client and the project, while still serving a higher, even global calling?

The problem is in the creative process itself – a way of thinking utterly alien to most in the legal profession – but key to understanding both the problem and its solution.

By necessity, design is often conceived in the haze of the half-waking dream – the fertile ground between mythology and science where nearly anything is possible and the realities of engineering, building codes and especially the law, stand pale and ghostlike in the background, patiently waiting to be acknowledged. By virtue of their academic and professional training, those who enter the design professions have been culled from the many applicants who found this Phantom Zone a bit too, well – ephemeral, for their way of thinking. In over-simplified terms, conceptual building design is a right brain activity, with just enough of the left brain kicking in to make sure that designs can be built, stand up and preferably not kill anyone along the way. All of this, of course, ignores the long-simmering civil war within the design professions – especially in architecture – between the pure designer and the others – those who have sought peace between their warring cranial hemispheres and achieved a sort of balance and détente between the rational and romantic synaptic impulses crackling away in their melons like a tree full of blackbirds. Or, less metaphorically, the conflict between those who regard architecture as merely a poetic thought exercise that sometimes results in buildings, and those who see architecture as a building art necessarily expressed by, you know – real buildings. For purposes of green design and construction legal liability, it’s the former who are most at risk, but in the current state of the green building industry, even the latter need to navigate with caution.

At the same time, speeding along in their different, but often intersecting orbits, and generally unconcerned with romantic sentiments, design theories and ideology – are the lawyers. Much-maligned and often underappreciated, they suffer from a long history of popular distain as evidenced in movies and books populated by two-dimensional stereotypes that only someone who’d never set foot in a court room or who’d maybe spent their first year out of law school as a litigation whipping boy at some hard-charging mega-firm – before fleeing to a less stressful career hauling crab pots in the Bering Sea – would think bore any resemblance to real lawyers and the real practice of law. But, for this series’ purpose, lawyers are just like other people and hardly any fit any of the popular stereotypes – except, of course, in one very important way.

By necessity, the law requires a full-on, highly caffeinated, linear way of thinking by individuals who, from cradle (or law school anyway) to grave are culled from society’s broader and less focused thinkers, and trained to apply their powers of unemotive logical reasoning with the precision of an excimer laser and a rigor that could bring a tear to even Mr. Spock’s stoic eyes. The beautifully creative and impressionistic notions of designers are as incomprehensible to most lawyers’ fast-firing, sixteen-cylinder minds as a description of the aurora borealis would be to someone unsighted from birth. And when, as discussed in Part 1 of this series, that green roof turns from a much-lauded butterfly refuge to a sopping mess in the offices below, any green design or construction professional whose defense is proudly based on idealistic and heroic notions of saving the planet instead of tedious due diligence and observance of a standard of care, may abruptly find themselves in a new line of work. Measuring the Cheshire Cat grin of the plaintiff’s attorney who hears that defense in a deposition or at trial would be done in feet, not inches – as beautiful in its expression of victory as the defense counsel’s involuntary gagging is sudden and violent.

This then, is the essential conflict that can lead to career-ending legal liability: unfulfilled expectations which arise because green design and construction professionals, in their desire to imbue their work with more then mere programmatic compliance, choose – unwisely – to advocate questionable solutions to uncertain problems in a quest for the salvation of the planet – all of which runs headlong into the snapping jaws of a legal system which is generally unimpressed with messianic notions and world-saving idealism, and more concerned with whether proper professional duties and standards of care were observed. In this way, the popular stereotypes of lawyers and the legal profession are not the amusing stuff of popular entertainment – but of a reality that green design and construction professionals either willingly appreciate at the beginning of their projects – or may unwillingly at the end.


NEXT: For green design and construction professionals – and green building advocates in general – the following parts of this series may sting a little. But fully addressing the root causes of emerging green legal liability isn’t done through a typical, dry legal discussion about traditional causes of action and contract defenses. It’s done by understanding – really understanding – the reasons why green design and construction professionals passionately (though, perhaps unwittingly) risk their practices to advocate a theory of design and building that relies as much on a currently legally indefensible ideology of global salvation as it does on traditional notions of high-efficiency building design.

But is green design and construction really based just on ideology, theology or even superstition as some have claimed? Or, is energy efficient and human-centered design just the most sensible way for a technologically advanced civilization to design buildings and cities in the 21st century? Have humanistic values finally returned to our way of thinking, living and designing our communities? Do traditional legal causes and effects even apply here or are we into new territory that will require attorneys to reach deep into their right brains and create new defenses to address a new way of designing and building, rather than simply relying on traditional, possibly outdated and even ineffective approaches developed for a different design/construction/law paradigm? Is it time for everyone to bring their A-game to develop a whole new way of thinking about how our values are reflected in the way we design and build and the law’s response to those changes?

Maybe – or not. Maybe green design and construction is just the same old – with a new paint job to match a new vernacular.

But the answers to these questions will not be found by cringing behind delicately minced words and the occasional grand jeté between half-truths – but will be found tackling the issues head on with an unapologetic and sometimes polemical directness that brings the matter into full light for a much-needed objective rational discussion. Even so, it’s likely, as is often said in the law, that reasonable people may disagree – and probably will.

© Copyright Gary L. Cole AIA, Esq. 2009

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