An informative presentation on the evolution of green building practices that includes important topics such as • EPA Definition of Green Building • Leadership and Energy and Environmental Design (LEED) Program • Impact of Green Building Initiatives on Construction Defects and the impact of LEED • How to measure a building's impact • Why follow LEED standards??? • Measurable benefits of green technology • Potential problems and theories of liability • Negligence and economic loss rule

1. Green Technology
David E. Schumacher, Esquire
500 Virginia Street East, Suite 600 • P.O. Box
3710 • Charleston, West Virginia 25337
(304) 345-4222

2. Evolution of Green Building Practices or “From
the Flintstones to Jefferson to the Jetsons”

3. EPA Definition of Green Building
• “The practice of creating structures and using
practices that are environmentally responsible
and resource efficient throughout a building’s
life cycle from siting to design, construction,
operation, maintenance, renovation and
deconstruction.”

4. • Without incentives the greening of America’s
construction practices was carried out due to
necessity

5. Flintstones
• Natural local products – rock quarry and low
energy – home and auto

6. Jefferson
• Site location – near river and transportation, self sustaining
with garden, fish pond, and ice from river with ice house
below structure. Tall windows and doors used for ventilation
with building products from site, wood, stone, limestone, etc.
• Ventilation blinds on porticos and/or porches to keep out sun
and allow breeze.

7. Why Green Buildings?
• In the U.S. alone buildings use nearly 40% of the
energy, approaching 75% of the electricity, produce
nearly 40% of the CO2 omissions, and suggest that
green construction should be public policy and
eventually required. On worldwide basis statistics
indicate that construction and building maintenance
consumed 40% of the world’s energy, 65% of all
electricity and 40% of raw materials.

8. Is it here to stay?
• So long as money is available or when money runs out and
fines are imposed, green will stay.
• The American Recovery and Reinvestment Act of 2009
allocated billions of dollars to green building projects
including 4.5 billion dollars to convert federal buildings into
high performance green buildings.
• The intention and hope is that by investing now in green
construction and environmentally friendly laws we will be
able to reduce long term costs including those to the
environment and natural resources.

9. • Historically statistics suggest that the value of green buildings and
products and services in 2005 was more than 7 billion dollars. It was
estimated that the annual value of green building products and services
would increase to 12 billion dollars by 2007 with 2 billion square feet of
commercial building space having been registered or certified under the
rating system known as LEED, aka Leadership and Energy and
Environmental Design. The most recent statistics for 2010 suggest that
the value of green building products and services has reached more than
60 billion dollars. Obviously, the market for green construction has been
created by both the ideal to better the environment and future of natural
resources, the atmosphere, energy resources, etc., as well as the result of
financial incentives.

10. Tax Credits
• Dave Lunsford will provide examples
• Las Vegas and D.C.

11. Green or Sustainable Construction
• Green or Sustainable Construction has
momentum not only because of user demand
for environmentally conscious structures and
thus provide opportunity for builders,
architects, etc., but also because “simplified “
or organized “certification” programs.

12. • U.S. Green Building Council, among others,
helped to launch on a large scale the desire to
pursue sustainable and high performance
buildings.

13. Leadership and Energy and Environmental
Design (LEED) Program
• Classifications of basic certification, silver,
gold, platinum.
• USGBC was created more than 20 years ago
and there have been significant developments
within the LEED rating system since then,
including 4 primary changes, with the 4th
change
presently
on
hold
with
implementation delayed from the winter of
2012/2013 and set for the fall of 2013.

14. Focus of LEEDs
• The LEED rating system for green construction developed
ratings based upon the nature of the construction projects
including:
–
–
–
–
–
–
–
–
New Construction
Existing buildings
Commercial interiors
Core and shell
Schools
Retail
Health Care
Homes

15. • Rating system, other than that for homes,
under the LEED criteria is broken down into
categories:
– Sustainable sites
– Water efficiency
– Energy and atmosphere
– Materials and resources
– Indoor environmental quality
– Innovation and Design process

16. • Each category can provide points and credits toward
certification at different levels. Examples include, for new
construction you may obtain credits for “ground field
redevelopment or alternative transportation” (sustainable
site)
• Water efficient landscaping or innovative waste water
technology
• Water efficiency
• On Site Renewable energy sources or green power (energy
and atmosphere)
• Reuse of existing building materials or recycled content
(materials and resources)
• Enhanced Ventilation (indoor environmental quality)

17. • Additionally, there are certain pre-requisites
that must be met for the project to be LEED
certified.
• For example, new construction rating system
requires the project to have construction
activity pollution prevention, onsite collection
of recyclables and environmental tobacco
smoke control among significant threshold
requirements.

18. • The credits and points are added up so that a
score card is completed and the number of
total credits then push the building toward
LEED certification with the lowest level being
LEED certified.
• Next level is LEED silver, followed by LEED
Gold. The highest form of certification is LEED
platinum.

19. • While not universally accepted, the use of LEED certification is
on such a wide spread basis worldwide that the vast majority
of governments have adopted it in one form or another or
portions of it. The system provides flexibility and is
customizable, so as to allow buildings to be certified at
different levels and potentially to qualify for credits from local
governments or federal government depending upon the
project, based on points obtained from prior categories
described, and the building may not reach all categories or
obtain points or credits from all categories.

20. LEED basic categories
•
•
•
•
•
•
1.
2.
3.
4.
5.
6.
Site Consideration
Water conservation
Energy Savings
Material Properties
Indoor Environment
Innovative Practices (included as a
potential credit or point maker)

21. • Again, all 5 primary categories contain certain
prerequisites that must be met before points
can be earned.
• For example, certain minimum standards of
energy efficiency must be met before any
energy saving credits may be earned.

22. • Secondly, because some environmental issues
have been deemed more important or having
greater potential impact than others, the LEED
point system is weighted in favor of those with
greater impact.

23. It Ain’t Easy Bein’ Green

24. Impact of Green Building Initiatives on Construction Defects or
“It Isn’t Easy Being Green”
• Increased liability exposure from “green construction” arises
from at least 2 issues that exist because of the “cutting edge”
status of green construction and products used in green
construction.
• There really is, as of this time, no universally accepted
standard for what qualifies as a green or sustainable building.
• Secondly, there is an increased risk of heightened
expectations on the part of the end user or, in particular, the
owner of the building with regard to the results.

25. • Green = Defect Free?
• Sustainable = Less Maintenance?
• Sustainable = Longer Life than Conventional
Construction?
• Expectations regarding – energy savingssubjective comfort-enhanced indoor air
quality.

26. • Aggressive
marketing
(negligent
misrepresentation/intentional
misrepresentation/deceit/
fraud
in
inducement/unfair competition claims) of
green buildings due to demand, incentives,
and now potentially penalties.

27. • In essence, each separate characteristic of
“green “ construction can lead to claims which
might not have been available under standard
construction (sustainable building sites/water
efficiency/energy conversation/atmospheric
impact/effective use of materials and
resources/indoor
environmental
quality/creative design?)

28. Stricter regulations or changing from
the carrot to the stick.
• LEED program as voluntary compliance program or guidelines
for creating a better world.
• Stimulate better world by government related initiative such
as tax credits or other non mandatory means of encouraging
green construction.
• Local (state/county/city) statutes, regulations and ordinances
incorporating portions of green construction including LEED
program either in part or wholly by simple reference to the
change voluntary to regulatory

29. Prima Facie Negligence?
• Interpreting LEED when incorporated wholly
within local statute or regulation.
• LEED vs. Green Building Initiative vs.
International Green Construction Code, etc. –
evolving regulations and evolving LEED? –
moving targets.

30. • Increased Exposure to Damages Due to Failure
to obtain desired tax credit or for LEED
classification with penalties available under
local statutes?

31. Impact of LEED
• USA TODAY video
• Green Building Lead Certification

32. Measuring a Building’s Impact
• Leadership in Energy and Environmental
Design (LEED)Third-party program to verify
green building projects

33. Measuring a Building’s Impact
• Different point systems for different
construction types

34. Measuring a Building’s Impact
• Different point thresholds for various LEED
certification levels
– For LEED buildings:
•
•
•
•
Certifed = 40-49 points
Silver = 50-59 points
Gold = 60-79 points
Platinum = 80+ points

35. Measuring a Building’s Impact
• To qualify as a LEED building, it is necessary to
meet the point requirements and pay the
requisite fee.

36. Measuring a Building’s Impact
• Buildings can earn credits in a variety of areas:

37. Measuring a Building’s Impact
• Sustainable site credits encourage strategies
that minimize the impact on ecosystems and
water resources.

38. Measuring a Building’s Impact
• Water efficiency credits promote smarter use
of water, inside and out, to reduce potable
water consumption.

39. Measuring a Building’s Impact
• Energy and atmosphere credits promote
better building energy performance through
innovative strategies.

40. Measuring a Building’s Impact
• Materials and resources credits encourage
using sustainable building materials and
reducing waste.

41. Measuring a Building’s Impact
• Indoor environmental quality credits promote
better indoor air quality and access to daylight
and views.

42. Why Follow LEED Standards?
• Policy considerations
– Reduce environmental footprint
– Conservation
• Tax Considerations
– Governments have supported these policies by
providing tax incentives for choosing green
construction instead of traditional construction
– Potential penalties at a later point (local
regulations)

43. Sustainability Explained
• http://www.youtube.com/watch?v=B5NiTN0c
hj0

44. Green Building Defect and Design Claims
Proper Training
•
Training (Site Development, Water efficiency, Energy Efficiency, Material Selection, Indoor environmental
quality, innovation in Design)
•
A lack of Knowledge about the various factors involved in green design can lead to potential legal liability.
•
Contractor should hire a BUILDING COMMISSIONING AGENT.
•
New technologies and materials enhance potential legal problems.
•
Occupant training is also paramount.

45. Green Building Defect and Design Claims
Construction Oversight
• Proper Construction Oversight
•
Owner, bid, build
•
Owner, selection, teamwork with contractor and
primary subcontractors

46. Green Building Defect and Design Claims
• Guarantee or warranty in place
• “New” Technologies – hemp, bamboo, clay, reeds, cork
•
Tax credits – performance; municipal, state, federal

47. Construction Delays
• Construction Delays: reasonable or unavoidable (Shaw
Development v. Southern Builders)
• Mechanics lien
• Time of the essence

48. New Standard of Care?
•
Should a design professional be held to a new standard of care?
•
Higher
•
Lower
•
Comparative Negligence

49. Measureable Benefits
How to measure and document green performance claims for accuracy
•
(Site Development, Water efficiency, Energy Efficiency, Material Selection, Indoor
environmental quality, innovation in Design)
•
Centralized computer reports
•
Designer v. Contractors v. Occupants

50. Potential Problems and Theories of
Liability

51. LEED Certification as a guarantee?
• Voluntary vs. Regulation Imposed
• Terms of Contract
• Warranty/Guarantee/Theories of Liability
– Warranty regarding products used and additional
parties exposed to liability (manufacturers, etc.)
– “misrepresentation”
– Aggressive marketing

52. Structural Problems with green
roof
•
Products
– Early ‘green’ litigation regarding product
• Chesapeake Bay Foundation, Inc. v. Weyerhaeuser Co.
• One of the very first LEED platinum rated buildings in the country.
• Parallams beams made from wood waste environmentally neutral coatings for sealants-statute
of limitation issues
– Roofs variety of functions-shielding building from sun/wind/rain
• Insulation from external temperature fluctuation
• Directing water run off
• Providing working platform for important mechanical equipment
– Due to variety of functions the environmental benefits of roof can be found in nearly every LEED
category however LEED emphasizes environmental benefit without an equal concern for durability
– EX: building owner or designer can achieve one LEED point for painting the building roof with
reflective coating even though the coating may last less than 5 years. At the same time there may be
no credit available for the selection of a high performance but non reflective roofing system that may
be designed and warranted for 30 years.

53. • Design defect
– Architects/Contractors

54. Learning Curve Issues
• Learning curve issues with new products,
technologies and design, particularly roofing
materials.
• Historically repair costs support the conclusion that
performance of any building envelope system
including roofing systems tend to improve as the
industry gains experience with that system –
incentive by LEED to “favor new technologies” that
may not yet offer optimal performance regarding
durability.

55. • Sustainable products based on energy issues
under LEEDs criteria may provide minimal
durability when compared to currently
available high performing roofing systems.

56. Life Cycle Analysis
• Green product delays
• Not only is there a learning curve with any
new product or technology, but often new
products and technology are, at least initially,
available in limited supply and, due to
improved technology or understandings of the
limitations of the “new technology” are
available during a limited period of time.

57. • Additionally, new product manufacturers may
themselves exist for a limited period of time
causing further delays.
• Additional expenses involved in new green
materials or green products made from green
materials.

58. Guarantee of Healthy Workplace
• LEEDs rating system has been promoted and contained substantial criteria
regarding superior habitability of LEEDs compliant building – essentially
claims that if certain criteria are met under LEEDs the building design and
construction will be superior to those not followed by LEEDs providing a
healthier environment for inhabitants and users much more
environmentally sensitive and more importantly energy efficient – note
interesting case regarding USGBC itself filed in Oct. 2010. Gifford v.
USGBC, et al. – false advertising, consumer protection claim and unfair
competition and business practices – showing divergent claims available
(turned into standing issues regarding plaintiffs lacking same) Note
language from case “The LEED certification process does not assess the
actual environmental performance for any structures for which
certification is sought or granted, but certifies they were designed in a way
that they should result in better performances.”

59. • Note that purpose of the promotion and
advertisement of LEED by USGBC was to
encourage the expanded use of this
certification system.
• Court adopted the defense set forth by USGBC
in its statement that LEED was and is “aimed
at improving environmental performance and
does not assess actual…performance”

60. Use of BIM in Green Buildings
• BIM (Building Information Modeling)
• Integrating and Coordinating Architects,
contractors, and owners desires in green
building requirements though coordination of
all aspects of construction.

61. Damage to Reputation from
“Greenwashing”
• Greenwashing refers to misleading and inaccurate information
provided by contractor/architects/engineers, etc. in order to
create a green image.
• Generally results from overpromising by builders, designers,
contractors or suppliers
• Outright misleading of consumers
• Note: recent products offered by carriers including “green
reputation coverage”
• Aimed at situation where increased public scrutiny and
negative media coverage result from a building failing to meet
required industry standards.

62. Common Defenses in Construction
Litigation
•
•
•
•
•
•
Statute of Limitations
Failure to Mitigate Damages
Failure to Maintain
Betterment
Performance According to Design
Third Party Liability

63. Common Defenses in Construction
Litigation
• Opportunity to Cure Defects within 60/120
Day Window
• Timely Notice to Contractors
• Comparative Negligence (Depends on State)
– Less-Than
– 50-50
– Pure
• Contributory Negligence (Depends on State)

64. Insurance Law
•
Insurance Law - coverage / no coverage / endorsements
•
Architect
•
Contractors
•
Owner of Building
•
Ex. Target burned down.

65. Contract Law
• Contract Law - paramount
• Coverage?
• Damages - Are the damages loss of Gold, or cost of bringing that up to the
Gold standard?

66. Tort Law
• higher loss exposure to fire / mold

67. Warranty Law
•
Express/ Implied
•
EX. Vegetative roof leak
•
Damages – Is the product not working, or did the product damage
something? Product claim or did the product cause a diminution of value or cause
the owner to evacuate the building.

68. Negligence and Economic Loss Rule
• Negligence
– Duty of Care
– Breach of Duty
– Causation
– Damages

69. Negligence and Economic Loss Rule
• Duty of care is a legal obligation imposed on
an individual requiring that they adhere to a
standard of reasonable care while performing
actions that could foreseeably harm others.
• Each person has a duty to do what a
reasonably prudent person would do
in the same or similar circumstances.

70. Negligence and Economic Loss Rule
• Breach of Duty occurs when the Probability of
loss and the amount of loss outweigh the
burden that could have been taken to prevent
the loss.

71. Negligence and Economic Loss Rule
• Causation is a two-part inquiry
– First, a Defendant’s action is a cause in fact if the
Plaintiff’s injury would not have occurred but for
the Defendant’s action.
– Second, a Defendant’s action is a proximate cause
of the Defendant’s injury if it was foreseeable that
the Defendant’s breach of his or her duty would
cause injury.

72. Negligence and Economic Loss Rule
• Damages place a monetary value on the harm
done. They are compensatory in nature and
seek to Plaintiff in the situation he would have
been in but for the harm.

73. Negligence and Economic Loss Rule
• Direct damages are damages that are directly
out of the Plaintiff’s pocket.
– Ex: Repair of damaged portion of building
• Consequential damages are damages that are
indirectly out of the Plaintiff’s pocket.
– Ex: Lost profits for business closure during
renovation.
• Generally, consequential damages are not available
unless specifically included in a contract.

74. Negligence and Economic Loss Rule
• The majority of States allow a party who
suffers only economic losses to only pursuant
to contract law theories.
• A minority of States allow a party who suffers
only economic losses to recover under tort
theories.

75. Negligence and Economic Loss Rule
• Check your local jurisdiction to see if the
economic loss rule applies in your State.

76. Conclusion
• Green Construction is a growing aspect of the
construction industry with many potential
liabilities to assess during the construction
process.