Stites & Harbison, PLLC

As we approach the time for New Year’s resolutions, it is important to take survey of what happened over the past year to help set goals for the future—whether you are talking about your work, family or personal health. 

Over the past year at www.bestpracticesconstructionlaw.com, we have highlighted some key sustainability trends, including posts about California’s green building code, the International Green Construction Code, the real costs of LEED certification, local policies to encourage green-building projects, and green marketing measures that have come under FTC scrutiny.

Did you know that the green-building industry has grown by 50% in the past two years?  That truly is surprising given the fact that overall construction has shrunk by more than 25% over the same period.  According to a new report by McGraw-Hill Construction called “Green Outlook 2011: Green Trends Driving Growth,” dollar forecasts for the green-building sector is targeted to grow from an estimated $55 to $71 billion this year to more than $145 billion by 2015. 

With the growth in the green-building sector, one can certainly predict an increase in claims and disputes in the future.  Fellow blogger Chris Cheatham calls it a rise in LEEDigation, a term used to describe litigation involving green-building and the LEED rating system.  One of the first green-building disputes was Shaw Development, a case involving claims that the developer lost certain tax credits because the contractor allegedly failed to construct the project “in conformance” with LEED Silver certification requirements.  The most recent green-building legal dispute involved Henry Gifford, a building consultant in New York, who filed a class lawsuit against the U.S. Green Building Council.  The lawsuit alleged violations of the Sherman and Lanham Acts for “deceiving users” of the LEED rating system and to challenge whether LEED buildings perform better than conventional buildings.

As you reflect on 2010 and prepare for the New Year, what steps can you take to avoid LEEDigation?  Here are a few:

• Understand the difference between green-building and ordinary law.  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, although 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.
• Identify the legal pitfalls in green construction.  Fellow attorney Angela Stephens prepared a great list of “Ten ways to minimize the legal pitfalls of sustainable design and construction,” such as not guaranteeing a level of certification or promising more than you can deliver.
• Follow green building sources for changes in the law.  One of my top sources of information is the USGBC’s “In the News” page, which includes items about new standards, policies and member updates.  In addition to Best Practices Construction Law blog, some other green building law blogs include: Green Building Law Update, Green Building Law Blog and Green Real Estate Law Journal.

Matthew J. DeVries is a Member in the firm's Nashville office.  His practice focuses primarily on construction and business litigation and he is a member of the Construction Service Group, Business Litigation Service Group and the Sustainability and Emerging Technologies Practice Group. 

Matt is the founder of http://www.bestpracticesconstructionlaw.com/, a construction-related blog that receives approximately 4,000 unique visitors per month.  The blog focuses on green building and  sustainable design, technology, project management and legal trends in the construction industry.  Matt is a LEED Accredited Professional.