The American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) is the organization that formulates the energy, ventilation and thermal comfort codes that become a part of the building codes of most of the states through the ICC (International Construction Council). At the ASHRAE convention in New York City in January, 2008, there were several seminars on the legal ramifications of green buildings. In June of 2008, Lexis Nexis, the reference guide of many attorneys, published a book entitled “Current Critical Issues in Environmental Law: Green Buildings and Sustainable Development”. This book, which I co-authored with two attorneys, explained USGBC and LEED® Guidelines, mentioned various state and federal incentives for green buildings and pointed out some of the complexities for owners, architects, engineers and contractors relative to designing and constructing them.
Some of the legal issues brought forth are:
• who is responsible for the level of certification
• which party or parties are responsible for tracking, collecting, assembling and submitting the supporting documentation
• who is responsible if the project fails to achieve the desired sustainable rating, and what damages might flow from such a failure
• might green construction procedures, construction materials, systems or techniques not comply with existing state or municipal regulations. Remember, codes and standards typically are behind technology by at least 2-5 years.
• might the time frame for completion of the project be extended
These are only a few of the potential complexities that are added to the already complex procedure of building construction.
For design professionals, there can be additional liability when signing credit submittal templates for certification under LEED. These could potentially trigger an exclusion in professional liability policies.
When I gave my first talk on Indoor Air Quality (IAQ) at the convention of the International Facility Management Association (IFMA) in Baltimore in 1990, there had been no jury trials in IAQ cases. By the mid-1990s there were entire floors of attorneys making lots of money on IAQ cases.
This same thing is starting to happen relative to Green building. Be careful!
