The principles of the LEED program have been incorporated into law and politics at all levels of government and in most states. Green buildings are pretty well accepted by the various parties in the US construction industry and are growing rapidly despite the challenges.

The rapid growth of the green building market at a pace that exceeded the building industry’s capabilities in terms of expertise and technology left many people expecting higher litigation rates in U.S. courts, and some industry commentators even said a big blow to that “Standard of care.”

What happens in US courts?

Probably the most famous lawsuit in the field of green building was brought against the USGBC by the owner of Gifford Fuel Savings. Mr Gifford alleged that the organization committed fraud by creating unfair competition, false advertising and fraudulent trading practices. The claim was based on the fact that LEED-certified green buildings are no more efficient than conventional energy options.

While the New Buildings Institute claims that LEED buildings save 28% of total energy compared to the national average, Mr Gifford published a private analysis that shows LEED buildings are nearly 30% less efficient in energy spending. However, the $ 100 million lawsuit was ultimately dismissed when the judge ruled in USGBC’s favor.

Another famous dispute that made it to court was the Shaw Development vs. Southern Builders case, where the owner counterclaimed the general contractor for $ 635,000. On the basis of the present contract, the client claimed that the general contractor was obliged to construct a sustainable building with a LEED silver certificate. However, the building did not meet the silver LEED certification requirements and lost tax credits as a result.

Even if the parties settled their disputes out of court, this case has prompted many companies to pay more attention to the contractual requirements of the contractors with regard to LEED certification and to clearly formulate all expectations for green building. This also showed that there is a chance for recovery when sustainable building goes wrong.

The actual problem

While the majority of those involved in the construction industry are excited about achieving the green goals of building, many of them are not yet familiar with it. Many definitions have been provided for green buildings, but many find that they lack specificity. “Resource efficient”, for example, is a core element of green buildings that has not yet been clearly defined. Construction experts see it as the federal responsibility to clarify this ambiguity and argue that the definition must not only meet the needs of the owner, but also regional conditions. For example, a green building in Ohio, Arizona might not be green.

There are many question marks surrounding green building and who should ultimately decide what the standard should be. On the other hand, some lenders require a certain LEED rating, even if material costs, industrial hygiene, construction techniques, and LEED designers can greatly increase project costs. However, it is unclear how the damage should be quantified if this value is not met, who is responsible for it and how much should be paid as a result.

LEED-certified buildings promise productive employees who are physically and mentally healthier. Many Green Buildings tenants have tried to sue USGBC because people are not getting the benefits the certificate promises while paying higher rents to be in these buildings. The process of getting LEED certification is very similar to completing a checklist, and getting LEED certification doesn’t necessarily guarantee a green building. Also, tenants do not have a contract with USGBC, and even if the information and expectations received do not match what they found, they still have no basis for their claims against USGBC.

On the other hand, there is a lack of research to support the USGBC pledges or tenant claims, but if future research does indeed come out to support tenant claims against USGBC, tenant attorneys will have sufficient evidence to investigate the USGBC . The litigation will likely involve breach of contract, negligence, and fraud.

What can you do

Many lawyers expect more green building lawsuits in the near future as owners realize that a green stamp can lead to higher rents, tax breaks, and good public relations. And if design professionals and contractors fail to deliver, owners will ask for a payback.

When reviewing the claims reported for green projects, it becomes apparent that the reported problems mainly relate to 3 main areas; Energy savings, certifications and incentives. The real challenge is to clearly identify the damage to property, which is now done on a case-by-case basis due to a lack of legal experience and a solid damage history.

In order to manage risk effectively, it is critical to pay close attention to contracts and to negotiate any dispute resolution provisions contained therein. In addition, the LEED targets must be included and integrated into the contract documents. At the same time, green declarations should be clear from the USGBC side, as the tenants and owners are informed about LEED, so that they can design flexibility in the contracts to cover the existing uncertainties.

In order to minimize the problems with the tenants, the builders finally have to stop characterizing a building only as “green”, but rather make their products more concrete. And within the construction project, the parties need to be more focused on the details and precisely identify the responsibilities for each person on the project team in order to achieve a particular LEED certification.

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Further information: Amer Hamad Issa Abukhalaf, Legal Complications in US Green Construction, Academia Letters (2021). DOI: 10.20935 / AL2576

Bio: Amer Hamad Issa Abukhalaf is a researcher at the Florida Institute for Built Environment Resilience (FIBER) researching disasters with an emphasis on linguistic minorities, emergency communication and sustainable solutions. Amer is a civil engineer and trained structural engineer, and received his master’s degree in executive management from Ashland University in Ohio. Amer is currently pursuing a Ph.D. Graduated from the Design, Construction, and Planning College at the University of Florida. Contact information (Amer.abukhalaf@ufl.edu)

citation: Where is the US Green Building Act? (2021, August 19) Retrieved August 19, 2021 from https://sciencex.com/news/2021-08-law-green.html

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