LEED Avoids Class Action, Energy Savings Claim Left Untested
There’s big news in the battle between consultants in the green building industry and the U.S. Green Building Council (“USGBC”). Following almost a year of litigation, it appears that the USGBC may have defeated a $100 million class action lawsuit brought by engineers and designers, according to a court order issued last week. The plaintiffs’ complaint filed last October argued that USGBC made false claims about the energy efficiency of buildings certified under its LEED program. According to plaintiffs, who were not LEED accredited professionals, the USGBC’s allegedly false claims about energy saving and energy efficiency deceived consumers into pursuing LEED certification, and along with it, hiring LEED accredited consultants. But the veracity of USGBC’s energy efficiency claims remains undecided for now, as the federal district court for the Southern District of New York has ruled that the plaintiffs lacked “standing” to pursue their case under both federal and state false advertising laws.
More precisely, the court found that engineers and designers were not in a position to claim that the alleged false advertising could have harmed them. The court rejected the plaintiffs’ injury claims. For one thing, engineers and designers are not direct competitors of USGBC – the Council certifies buildings, while the plaintiffs provide construction and design consulting services. Also, according to the court, the engineers and designers could not show that any alleged false advertising by USGBC caused them to lose clients, because the LEED building certification program does not require builders to use LEED accredited engineers or designers. Even if the USGBC deceived builders about the LEED program, the court reasoned, LEED didn’t preclude them from hiring plaintiffs.
Naturally, energy use is a critical component of the LEED program. And while the class of dejected New York plaintiffs may never get to challenge the truth of LEED’s past advertising, stakeholders involved in green building can draw some valuable lessons from this skirmish when it comes to green building certification and energy efficiency.
The court’s order briefly touched on the most important of these lessons. Citing USGBC’s own filing in the case, the court noted that green building certification doesn’t necessarily address energy performance so much as the potential for energy efficiency. In other words, LEED certification may establish the potential for energy saving, but it doesn’t prove it. Then again, the LEED program does award points for the use of renewable energy, for on-site generation of renewable energy, and for monitoring and reporting energy use. Bottom line – because so many different factors go into a green building score, a clean/renewable energy claim about a green building can be potentially misleading.
So what does this mean? For one thing, one shouldn’t discount the value of a green building certification, whether from LEED, National Association of Home Builders, Green Globes, or any other comparable program. Certifications provide a nice, simple way to prove the green credentials of a building. On the other hand, additional disclosure may be prudent, particularly for those who market or advertise certain green attributes of a building. Architects, builders, owners – and anyone else who might profit from such claims – must be careful to not overstate or misstate the significance of a green building certification. With respect to energy efficiency, for example, a good LEED score may be the result of significant energy efficiency, or it may not.
Finally, what about the New York plaintiffs and their $100 million claim against USGBC? While the merits of their case remain unproved, don’t be surprised if the plaintiffs appeal the district court’s order. If they can convince a higher authority that they may have lost business to the LEED program, they may get a second chance to go after USGBC’s energy efficiency claims.
Bond. Performance Bond.
Performance bonds—insurance-like arrangements in which a surety (the bonding company) contractually agrees to pay for the performance of a principal (the contractor) to an obligee (the owner) in case the principal fails to perform the obligations of its contract—should be used more often in construction agreements to provide owners with a source of funds to cover defective work in a project.
Currently, owners typically require contractors to obtain insurance policies with the hope that such policies cover defects in the work they perform for the owner. Though owners are willing to spend a lot of money, time, and effort in obtaining these policies, insurers continue to make revisions to their policies to limit, and sometimes prevent, coverage for these defects.
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Performance bonds may provide better protection to an owner. Typically, the bond provides funds to pay for repair of defective work that may not be covered by insurance as part of the bond’s guarantee of the faithful performance of the contract by the contractor.
Unlike insurance policies, performance bonds provide coverage only for the owner’s project—if an owner discovers a defect in the contractor’s work, the owner will not have to worry whether another owner’s claim against the contractor for another defective project will reduce the coverage available under the contractor’s bond. The performance bond’s recovery pool belongs to the owner for the specific project it is drafted to cover.
You Are a Project Owner or Developer Who Wants to Build a Green Project? So, What Do You Actually Put in Your Contracts?
Despite the explosion of articles, seminars and webinars on green building and development during the last year or so, there is a dearth of information in the development world regarding what project owners and developers who do want to build a green project should actually put in their design and construction contracts.
Here is what I think is important regarding this subject:
General Green Building Certification Goal. The project owner first must decide in general what green building goal it wants to achieve. LEED certification (from the US Green Building Council), at a particular certification level (general, silver, gold, platinum), is an obvious option. But there are other general green building certifications, too, such as Green Globes (Green Building Initiative) and SBTool07 (International Initiative For a Sustainable Built Environment), as examples. The owner should make this basic decision early on, based on good information and analysis and the advice and recommendations of design and green building consultants, as applicable.
Industry-Specific Green Building Certification Goal. Deciding on an overall green building goal such as a LEED certification is not the only certification goal a project owner should consider, however. There also is a growing number of industry-specific certifications that the owner should evaluate, depending on the nature of the project and the owner’s business. For example, there are certifications available for health facilities (Practice Greenhealth), restaurants (Green Restaurant Association) and hotels (Hotel Pure Green). How important an industry-specific certification of this type is to an owner is a question to be addressed at the start of the design process.
Tax and Other Governmental Incentives Goal. Another element of green building goals to be considered is tax and other governmental incentives relating to green building. Particularly in Oregon and under new federal stimulus legislation, there may be tax credits, grants and other public sector incentives for green, sustainable and energy efficient construction that can be of substantial benefit to a project. However, these incentives must be identified as project goals early in a project’s design in order to ensure that the owner is able to take advantage of them.
Making Green Building Goals Explicit. Once an owner has sorted through its optional goals for LEED or other general certification, for industry-specific certification and for tax and other governmental incentives, these goals should be expressly set out in the owner’s design and construction contracts. Otherwise, the owner’s architect and contractor will not have any contractual obligations to achieve the owner’s green building goals. Typical form contracts, including 2007 American Institute of Architects (“AIA”) forms of contract, include minimal references to these kinds of obligations and do not include language in which to make the goals explicit.
Continue Reading...LEED Decertification
If you think LEED certification of a building is a one-time deal, think again.
USGBC’s latest version of LEED (version 3) establishes several new changes to LEED certification. Two of those changes are particularly significant. First, USGBC now requires building owners to submit operational performance data on a recurring basis as part of the LEED certification process. Building owners must provide the data for a period of at least five years. Second, and perhaps more important, LEED v.3 gives USGBC the right to decertify projects.
According to the USGBC, building owners can comply with this new data disclosure requirements in one of three ways:
1. Recertify the project on a two-year cycle using LEED for Existing Buildings: Operations & Maintenance;
2. Provide energy and water usage data on an on-going basis annually; or
3. Sign a release that authorizes USGBC to access the building’s energy and water usage data directly from the building’s utility provider.
As to decertification, LEED v.3 provides that certification "may be revoked" from any LEED project upon the USGBC's determination that a building does not comply with several minimum requirements, including environmental law and data disclosure requirements.
The impact of USGBC’s new enforcement right is unknown at this time. Indeed, USGBC has not yet decertified a project. However, one thing is clear: this new system of decertification may put your green investment at risk. Owners should have their attorneys draft contract provisions to protect against these risks during the design, construction, and post-construction stages of a project
The Green Building Bailout
Can green buildings save the economy? Maybe that’s a stretch, but green buildings do play a significant role in the country’s GDP. By 2010, the value of green building construction is projected to be $60 billion. Perhaps more important in these times, the government is recognizing that greening our schools, homes, and office buildings could put thousands of Americans back to work. According to the United States Green Building Council (“USGBC”), President Obama’s economic stimulus plan provides several billions of dollars for (1) modernization of public schools, with preferences or requirements for green improvement projects; (2) green improvements of federal buildings and developments; and (3) block grant funds for states, localities, and tribes for energy efficiency projects. (http://communicate.usgbc.org/newsletters/USGBC_Announcement/01-09.html.)
Given the public money flowing into green building, owners, contractors, and designers would be remiss in ignoring this opportunity.
Green buildings present a great opportunity, but it’s important to remember that this relatively new industry brings its own sets of challenges. To ensure maximum communication between project participants and a successful green project, green building contracts should:
- Clearly delineate each party’s role and responsibility in producing the green outcome or certification desired; wherever possible, the green “outcome” should be reduced to clear, objective and quantifiable standards.
- Require an integrated design process, which brings together all project participants early and often; and
- Mandate projects participants to develop procurement schedules for all green materials being placed into the facility.
