Go green or go home


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A VA CLE Presentation with Charles Hendricks on the need for green building and the potential legal risks associated with it.

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  • Introduction of presenter
  • Introduction of presenter
  • So what is exactly sustainable design, is it solar pv, vegetated roofs, No VOC’s – how can you describe it to your client in a way that makes sense and makes them want to give you more money for delivering a better product.
  • Energy star is the most widely known and accepted green system on the market. People understand that logo means that the product will not use as much energy and will save them money.
  • This is a product specific rating system that is rapidly growing. It looks at materials from their chemical compositions and has a very high standard of measure.
  • Focused on air quality and off gasing of materials.
  • Introduction of presenter
  • The most basic understanding is what climate you are building within and what that means for the building. We have heating and cooling days and very humid days. We need our buildings to be air tight and vapor permeable. In another climate – let’s say in Florida, they don’t have many heating days, so the building envelope will be constructed differently. There are not mandatory decisions that need to be made in every situation, you have to look at the factors for the particular building and site you are working with.
  • Don’t’ over build. Use space efficiently – this only saves money for the client.
  • How you orient the building may lead to pv in the future or simply passive design that reduces energy use.
  • How should you insulate the building. There is not one correct answer. It depends on the project, location, and budget. ICF is the tightest envelope, but it takes more square footage, spray foam has a chemical in it that is not right for everyone.
  • Giving the power of control to an individual for that individuals area has been shown in many studies to reduce cost for the operation of the facility. Being able to turn your light off or turn your thermostat up / down or only use a reading light will reduce energy demand.
  • Lighting technologies are progressing. LED lights don’t have the same light splay as we are used to, fluorescent lights have mercury. There needs to be consideration of all the factors of each product selected. Perhaps some of each type of light is the correct decision along with some daylighting.
  • Testing the air systems is also important, knowing where the leaks are and sealing ducts to prevent leaks lead to cost savings a certifications in the end
  • Introduction of presenter
  • Rapidly renewable materials are sometime used as the solution that leads to problems. You have to be careful with every decision made through the process.
  • Regional materials are always a good choice as you don’t have to pay for shipping.
  • Concrete can have a high percentage of recycled content if you ask for fly ash, but what does that do to the structural integrity of the material, what about using american steel, or crushing recycled content for base
  • Why do we frame everything at 16” centers? Would 24” centers work just as well. Can we use materials better? Thinking holistically could reduce the amount of materials in a project saving the client money.
  • Introduction of presenter
  • Water heater options vs a standard water heater.
  • Introduction of presenter
  • Do you want to build a building on the best piece of the property or do you want to preserve the “view” to enhance the project and place the building on the less desirable location aesthetically. If you clear cut the lot, how will that impact the trees around the lot, what will happen downstream when the trees are not there to suck up the rainfall. Will you get negative publicity because of smoke or air pollution problems.
  • Introduction of presenter
  • FSC – why only one certification, it offers third party verification and stricter rules through out the chair of custody. This one is hard to implement if cost is the basis for decisions.
  • No VOC materials and understanding those materials is very important. Is there a radon problem in your area? Does the client react to chemicals? Will there be animals inside the structure?
  • Proper outdoor ventilation is critical when you build a tight structure. It is mandatory in commercial structures that you consider it, why not in homes?
  • Making sure the end user understands how to run the facility. How do you clean a bamboo floor, can you scrub a no voc pain wall, how do you program the thermostat?
  • Introduction of presenter
  • Introduction of presenter
  • Go green or go home

    1. 1. 12 January 2010Virginia Continuing Legal EducationGo Green or Go HomeCharles Hendricks, AIA, CSI, CDT, LEED APThe Gaines Group, PLC540-437-0012Cbhendricks@thegainesgroup.comChristopher G. Hill, LEED APThe Law Office of Christopher G. Hill, PC805-205-5155chrisghill@constructionlawva.com
    2. 2. Charles Hendricks• Partner at The Gaines Group, PLC, Architecture + Design• Immediate Past President of the Central Virginia Chapter of the Construction Specifications Institute• Adjunct Faculty at Blue Ridge Community College• Chairman of SVBA Green Committee• Member of the BRHBA Green Committee• Member JRGBC (Founding member of JRGBC-CV)• Member USGBC-NCR• Member AIA-CV• Member VSBN• Father of Hannah and Sophia
    3. 3. Christopher G. Hill, LEED AP 4870 Sadler Road, Suite 300 Glen Allen, VA 23060 (805) 205-5155 chrisghill@constructionlawva.com http://christopherhill-law.comLEED APAuthor, Construction Law Musings Blog (http://constructionlawva.com) Elected in each of the last 4 years to Virginia Business Legal Elite inConstruction Law Solo Practitioner
    4. 4. What is “Green Building?”
    5. 5. PERCEPTION
    6. 6. Because that is the way we always do it!
    7. 7. Why Green Design?•In the United States, buildings account for: •36% of total energy use •65% of electricity consumption •30% of raw materials use •30% of waste output •136 million tons annually •12% of potable water consumption “you must learn from the mistakes of others, you can’t possibly live long enough to make them all yourself? •Sam Levenson
    8. 8. Dharavi, a slum in Mumbai, India•67.5% of all energy generated is lost before it reaches it’s destination•30% of air from residential HVAC system lost before it reaches the room•50% of all aluminum cans are NOT recycled•2 million plastic bottles are used in the US every 5 minutes•106,000 aluminum cans are used in the US every thirty seconds•1.14 Million brown bags are used in US Supermarkets every hour
    9. 9. Why green design?
    10. 10. Define Sustainability– “Development that meets the needs of present generations without compromising the ability of future generations to meet their own needs.” • (source: United Nations World Commission on Environment and Development)
    11. 11. Green Design = Quality Design and Quality Construction
    12. 12. What is the first step to going green?•Evaluate where you are now and where you want togo with your effort. •Do you want to save money / energy? •Do you want to reduce your carbon footprint? •Do you want to preserve resources for the future?•Technical evaluation of the house, system thinking(process and products) •Low hanging fruit•Professional integration – architects, interiordesigners, engineers, builders, trades •Do you need more expertise? •Do you want to go towards a deeper green?
    13. 13. How do you define green?•Carbon Footprint Calculators •How many people in the family? •Size of the House •Is it energy efficient? •Do you use energy efficient lighting? •Energy Star? •Hot Water Use? •Travel or stay home •Do you eat meat? •Do you eat organic food? •Do you recycle•www.nature.org (The NatureConservancy)•So my carbon footprint is 83 belowthe national average of 110 now what?
    14. 14. Energy StarA voluntary partnershipbetween organizations,businesses, consumers,and government, unitedin the pursuit of acommon goal —to protect ourenvironment for futuregenerations by changingto energy-efficientproducts and practicestoday.
    15. 15. Cradle 2 CradleC2C – Cradle to Cradle -Companies receiving certificationwill have the opportunity to use theCradle to Cradle brandedcertification mark. This mark willsignify to customers that thecompany has chosen thechemicals, materials, andprocesses for health and perpetualrecyclability, allowingthem to purchase products thatmove us to a positive world ofsafe, healthy and fair economicenjoyment - worry and guilt-free -while meeting, and sometimesleading, the highest internationalregulatory and industry standards.
    16. 16. GreenGuardGreenGuard: The GREENGUARDEnvironmental Institute (GEI) is anindustry-independent, nonprofitorganization that oversees theGREENGUARD Certification Program.The GREENGUARD CertificationProgram is an industry-independent, third-party testing programfor low-emitting products and materials.In 2006, GEI introduced theGREENGUARD for BuildingConstruction Program, a mold riskreduction program that for the first timecertifies the design, construction andongoing operations of newly constructedmultifamily and commercial properties.
    17. 17. EarthCraftEarthcraft is a voluntary green buildingprogram, for both single and multifamilyhomes, developed by Greater Atlanta HomeBuilders Association through a partnershipwith Southface Energy Institute andgovernment and industry leaders. Thecertification process serves as a blueprintfor healthy, comfortable homes that reducesutility bills and protects the environment.
    18. 18. U.S. GREEN BUILDING COUNCIL LEED Rating System The Leadership in Energy and Environmental Design (LEED) Green Building Rating System encourages and accelerates global adoption of sustainable green building and development practices through the creation and implementation of universally understood and accepted tools and performance criteria.source: USGBC website
    19. 19. Technical Evaluation Systems Thinking•Climate Control •Insulation, HVAC, Building Size, windows•Resource Depletion •Building size, maintenance, water use, energy use, MONEY, durability•Water Consumption •Fixtures, washer, landscaping•Degradation of ecosystems / habitat •Landscaping, energy use, building size•Indoor Environmental Quality •VOC, carpet, aesthetics, occupant comfort and health
    20. 20. Climate Control
    21. 21. Climate Control• Functional Relationships • A mixed humid climate is defined as a region that receives more than 20 inches of annual precipitation, has approximately 5,400 heating degree days or less, and where the monthly average outdoor temperature drips below 45 degrees during the winter months• Air Tight / Vapor Permeable
    22. 22. Climate ControlHow much space do you really need?
    23. 23. Climate ControlBuilding Orientation for Solar Design / Wind Design
    24. 24. Climate ControlInsulation
    25. 25. Climate ControlControllability of Systems / Smart Grid Technology
    26. 26. Climate ControlLighting
    27. 27. Climate ControlHVAC / Tight Envelope
    28. 28. Resource Depletion
    29. 29. Resource DepletionAlternative energy
    30. 30. Resource DepletionRapidly Renewable Materials
    31. 31. Resource DepletionRegional Materials / Imbedded Energy
    32. 32. Resource DepletionRecycled Content Materials
    33. 33. Resource DepletionMaterial Efficient Framing
    34. 34. Resource DepletionWaste Management
    35. 35. Water Consumption
    36. 36. Water ConsumptionWater Reuse
    37. 37. Water Consumption / E & SErosion Control / Storm water Management
    38. 38. Water ConsumptionIndoor Water use
    39. 39. Water ConsumptionWater Heating
    40. 40. Degradation of Ecosystem / Habitat
    41. 41. Degradation of Ecosystem / HabitatSite Selection
    42. 42. Degradation of Ecosystem / HabitatStormwater Design: Quality Control
    43. 43. Degradation of Ecosystem / HabitatLandscaping
    44. 44. Indoor Environmental Quality
    45. 45. Indoor Environmental QualityCertified Wood
    46. 46. Indoor Environmental QualityLow-Emitting Materials
    47. 47. Indoor Environmental QualityOutdoor Air Ventilation
    48. 48. Indoor Environmental QualityEducation of the Homeowner or Tenant
    49. 49. Green Incentives
    50. 50. Incentives•Arlington County – Green Building Incentive Program•Charlottesville City – Property Tax Incentive•Staunton City – Impervious Surface Tax•Virginia – Residential Energy-Efficient Appliance Rebate•Energy Right Heat Pump Program•Federal Tax Exemption for Energy Efficient Products (Sales TaxHoliday)•Cville Gas – Energy Efficient Rebate•Columbia Gas – Home Savings Rebate / Business Efficient Rebate•Dominion Power – Commercial Energy Efficiency Rebate
    51. 51. Incentives•Energy Efficient Commercial Buildings Tax Deduction•Energy Efficient New Homes Tax Credit for Home Builders•Residential Energy Efficiency Tax Credit
    52. 52. Net-Zero Home in Central Virginia•Residential Renewable Energy Tax Credit
    53. 53. LEED in Central Virginia RegisteredGrottoes, Virginia
    54. 54. LEAP in Central Virginia
    55. 55. LEED in CharlottesvilleRegistered The Gaines Group, PLCCATEC Hinge House
    56. 56. Green Risks and How to Deal with Them
    57. 57. What isConstructionLitigation?
    58. 58. Unmet Expectations• Cost: The project cost more than expected• Scope: The project’s scope was more expansive than anticipated• Schedule: Completion took longer than planned• Quality: The workmanship quality was inferior to expectations.
    59. 59. What isLEED?
    60. 60. http://www.usgbc.org
    61. 61. http://www.nahbgreen.org
    62. 62. http://www.energystar.gov
    63. 63. What is GreenBuilding?as green construction also known or sustainable building, is the practice of creating structures and using processes that are environmentally responsible and resource- efficient throughout a buildings life-cycle: from siting to design, construction, operation, maintenance, renovation, and deconstruction. This practice expands and complements the classical building design concerns of economy, utility, durability, and comfort. http://en.wikipedia.org/wiki/Green_buildin g
    64. 64. LEEDigation•What is LEEDigation?
    65. 65. LEEDigation•Is it Different Than•Ordinary Litigation?
    66. 66. Law Ark Building Blog― 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. http://www.lawarkbuilding.com/?p=104
    67. 67. Best Practices Construction Blog― Cole may be right that there is no novelty to the traditional types of claims (contract, tort, statutory, etc.) that may arise in green construction disputes. However, the novelty in the green building industry is the new set of standards that will inevitably become part of the legal dispute. In other words, while ―a leaky green roof is still a leaky roof‖ … there will be new risks to be allocated, different types of damages lost, additional players involved, varied proof required and, yes, perhaps a novel cause of action alleged because that leaky green roof system failed. http://bit.ly/diszmS
    68. 68. Still... Unmet Expectations • Energy Performance: Is the building’s energy systems performing as expected (or promised)? • Rating: Did the building achieve the planned LEED rating or other certification? • Long-Term Sustainability: What is the project’s impact on the environment, and is this as expected?
    69. 69. Is Litigation Probable?
    70. 70. ― Green Growth is phenomenal across the globe. Harvey M. Bernstein, McGraw-Hill Construction
    71. 71. 2005 - 2008 Green Building Construction Grows 5x ($10b to $49b)2009 - 2013 Could Triple, reaching $140b Green Outlook 2009: McGraw-Hill Trends Driving Change Report
    72. 72. How’s It Going to End?
    73. 73. Shaw Development v. SouthernBuilders • Problem: Contract required building to meet Silver Certification. It didn’t. • Whose Fault?: Developer sued builder, but there was no clear allocation in contract of who was responsible for certification • Damages: $700k+ in lost tax credits • Result: Unknown - Settled.
    74. 74. Washington DC v. WashingtonNationals • Problem: Expectations for ―Green‖ LED Scoreboard wasn’t met. Owner claimed project wasn’t substantially complete and withheld funds. • Damages: Not too clear in settlement materials released, but $3.5 Million was withheld based in large part on the scoreboard dispute. • Result: Unknown - Settled.
    75. 75. What Are TheDamages?
    76. 76. Show Me The Money! • Tax Credits: Missing a certificate level can effect tax credit eligibility • Energy Efficiency: If property is not as energy efficient as promised, damages can include increased energy costs
    77. 77. Unique Damage Situations • Missing Certification: If a property expects to have Gold certification, but only gets Silver, and this doesn’t have any tax credit implications...what are the damages? • Goodwill: How will courts calculate loss of good will if green construction misses expectations.
    78. 78. Unique Liability Situations • LEED Responsibility Allocation: Responsibility for LEED points is distributed between architect, owner and contractor. If energy efficiency is not as expected, how do you assign liability? • Energy Efficiency: Energy efficiency of a building relies on factors: (i) climate; (ii) property placement; (iii) property use; (iv) etc. How do you clearly blame a party for inefficiencies.
    79. 79. Preparing for theRisk • Control Expectations • Limit Exposure By Contract • Be Careful, and Keep It Simple
    80. 80. Control Expectations ― ...Expect the unexpected. Always sounds like good advice. Except, of course, if you are expecting the unexpected, then well then it really isnt really unexpected anymore. Is it? And that leaves you vulnerable to the truly unexpected. Because, youre not expecting it.
    81. 81. Control Expectations • Clear terms identifying scope of work • Clear terms in Subcontracts • Very specific specifications, making them as independent from specific certifications as possible • Get team together ahead of time (BIM, Charette)
    82. 82. Shaw Developmentv. Southern BuildersContract required ―Silver LEED Certification,‖ but lackedclear specifications.Two lessons:- Builder’s obligation to achieve certification and build tospecs must be aligned;- Certification is not a guarantee, and architects /builders should be weary of promising a certification.
    83. 83. Limit Risk in Contract • Avoid warranties of long term energy performance • Set performance expectations at time building complete, not some time in future • Clearly allocate responsibilities between owner, builder and architect • Get LEED AP to consult
    84. 84. Things That Affect A Building’sEnergy Performance A building’s energy performance can be a very complex matter, affected by things out of the builder / architect’s control: - Climate - Use and Users of Building - Third Party Interference
    85. 85. Allocate ResponsibilityThe LEED Program allocates responsibility for pointsbetween the Owner, Builder and Architect.It is an error to not allocate responsibility for greenbuilding design and construction when contracting.
    86. 86. Non-ContractualActions • Check and Double Check Subcontractors’ and Consultants’ Credentials • Be Careful with Advertising. Keep it Simple and Don’t Greenwash. • Require Communication in Contract • Consider Green Building Insurance
    87. 87. What is Green Washing? Greenwashing (green whitewash) is the practice of companies disingenuously spinning their products and policies as environmentally friendly, such as by presenting cost cuts as reductions in use of resources. It is a deceptive use of green PR or green marketing. The term green sheen has similarly been used to describe organizations that attempt to show that they are adopting practices beneficial to the environment http://en.wikipedia.org/wiki/Greenwash
    88. 88. Novel InsuranceProducts • Green Washing Insurance • Green Certification Insurance • Heightened Risk caused by certain green building practices like Vegetative Roofing, Alternative Energy Generational Systems, etc.
    89. 89. Thank YouQuestions?Charles Hendricks, AIA, CSI, CDT, LEED APThe Gaines Group, PLC540-437-0012Cbhendricks@thegainesgroup.comChristopher Hill, LEED APThe Law Office of Christopher Hill, PC804-205-5155chrisghill@constructionlawva.com