1. LEEDigation The Impact of LEED on the Practice of LawChristopher HillThe Law Office ofChristopher G Hill, P.C.Virginiachristopherhill-law.comconstructionlawva.comLEED AP

2. What isConstructionLitigation? 3. Unmet Expectations Cost:The project cost more than expected Scope:The projects scope was more expansive than anticipated Schedule: Completion took longer than planned Quality:The workmanship quality was inferior to expectations. 4. What is LEED? 5. http://www.usgbc.org 6. http://www.nahbgreen.org 7. http://www.energystar.gov 8. What is Green Building?also known as green construction orsustainable building, is the practice of creatingstructures and using processes that areenvironmentally responsible and resource-efficient throughout a buildings life-cycle: fromsiting todesign, construction, operation, maintenance,renovation, and deconstruction. This practiceexpands and complements the classicalbuildingdesign concernsofeconomy, utility, durability, and comfort.http://en.wikipedia.org/wiki/Green_building 9. LEEDigation What is LEEDigation? 10. LEEDigation Is it Different Than Ordinary Litigation? 11. Law Ark Building BlogThe bad news is that attorneys, especially thosealready practicing in construction law, will soonrealize that aside from green design andconstructions sometimes specialized andoccasionally ill-defined vernacular, theres no realnovelty in the types of claims that might arise.No new frontiers of jurisprudence need be exploreda leaky green roof is still a leaky roofwhether it alsorequires regular mowing and landscape maintenancechanges little from a legal perspective.http://www.lawarkbuilding.com/?p=104 12. Best Practices ConstructionBlogCole may be right that there is no novelty to thetraditional types of claims(contract, tort, statutory, etc.) that may arise in greenconstruction disputes.However, the novelty in the green building industry isthe new set of standards that will inevitably becomepart of the legal dispute. In other words, while aleaky green roof is still a leaky roof there will benew risks to be allocated, different types of damageslost, additional players involved, varied proof requiredand, yes, perhaps a novel cause of action allegedbecause that leaky green roof system failed.http://bit.ly/diszmS 13. Still...Unmet Expectations Energy Performance:Is the buildings energy systems performing as expected (or promised)? Rating: Did the building achieve the planned LEED rating or other certification? Long-Term Sustainability: What is the projects impact on the environment, and is this as expected? 14. Is Litigation Probable? 15. Green Growth isphenomenal across the globe.Harvey M. Bernstein, McGraw-Hill Construction 16. 2005 - 2008Green Building Construction Grows 5x ($10b to $49b)2009 - 2013 Could Triple, reaching $140b Green Outlook 2009: McGraw-Hill Trends Driving Change Report 17. Hows It Going to End? 18. Shaw Development v. Southern Builders Problem:Contract required building to meet Silver Certification. It didnt. Whose Fault?: Developer sued builder, but there was no clear allocation in contract of who was responsible for certification Damages: $700k+ in lost tax credits Result: Unknown - Settled. 19. Washington DC v. Washington Nationals Problem:Expectations for Green LED Scoreboard wasnt met. Owner claimed project wasnt substantially complete and withheld funds. Damages:Not too clear in settlement materials released, but $3.5 Million was withheld based in large part on the scoreboard dispute. Result: Unknown - Settled. 20. What Are The Damages? 21. Show Me The Money! Tax Credits:Missing a certificate levelcan effect tax credit eligibility Energy Efficiency: If property is not asenergy efficient as promised, damagescan include increased energy costs 22. Unique Damage Situations Missing Certification: If a property expects to have Gold certification, but only gets Silver, and this doesnt have any tax credit implications...what are the damages? Goodwill:How will courts calculate loss of good will if green construction misses expectations. 23. Unique Liability Situations LEED Responsibility Allocation: Responsibility for LEED points is distributed between architect, owner and contractor. If energy efficiency is not as expected, how do you assign liability? Energy Efficiency: Energy efficiency of a building relies on factors: (i) climate; (ii) property placement; (iii) property use; (iv) etc. How do you clearly blame a party for inefficiencies. 24. Preparing for theRisk Control Expectations Limit Exposure By Contract Be Careful, and Keep It Simple 25. Control Expectations...Expect the unexpected. Always sounds like good advice. Except, of course, if you are expecting the unexpected, then well then it really isnt really unexpected anymore. Is it? And that leaves you vulnerable to the truly unexpected. Because, youre not expecting it. 26. Control Expectations Clear terms identifying scope of work Clear terms in Subcontracts Very specific specifications, making themas independent from specificcertifications as possible Get team together ahead of time(BIM, Charette) 27. Shaw Developmentv. Southern BuildersContract required Silver LEED Certification,but lacked clear specifications.Two lessons:- Builders obligation to achieve certificationand build to specs must be aligned;- Certification is not a guarantee, andarchitects / builders should be weary ofpromising a certification. 28. Limit Risk in Contract Avoid warranties of long term energyperformance Set performance expectations at timebuilding complete, not some time in future Clearly allocate responsibilities betweenowner, builder and architect Get LEED AP to consult 29. Things That Affect A BuildingsEnergy PerformanceA buildings energy performance can be avery complex matter, affected by things out ofthe builder / architects control:- Climate- Use and Users of Building- Third Party Interference 30. Allocate ResponsibilityThe LEED Program allocates responsibilityfor points between the Owner, Builder andArchitect.It is an error to not allocate responsibility forgreen building design and construction whencontracting. 31. Non-Contractual Actions Check and Double Check Subcontractors and Consultants Credentials Be Careful with Advertising. Keep it Simple and Dont Greenwash. Require Communication in Contract Consider Green Building Insurance 32. What is Green Washing? Greenwashing (green whitewash) is the practice of companies disingenuously spinning their products and policies as environmentally friendly, such as by presenting cost cuts as reductions in use of resources. It is a deceptive use of green PR or green marketing. The term green sheen has similarly been used to describe organizations that attempt to show that they are adopting practices beneficial to the environment http://en.wikipedia.org/wiki/Greenwash 33. Novel InsuranceProducts Green Washing Insurance Green Certification Insurance Heightened Risk caused by certain green building practices like Vegetative Roofing, Alternative Energy Generational Systems, etc. 34. LEEDigation The Impact of LEED on the Practice of Law Christopher Hill The Law Office of Christopher G Hill, P.C. Virginia christopherhill-law.com constructionlawva.com LEED AP