Shaw Development v. Southern Builders, the first green building lawsuit, caused a lot of legal handwringing in 2008 when the case apparently settled. Many predicted scads of green building litigation to follow. Now, almost halfway into 2009 we have seen ... nothing.

I have a few theories:


1. Green building is a tiny (though growing) proportion of overall building -- While very newsworthy, green building comprises only a tiny proportion of overall building. According to McGraw Hill (PDF), just 2 percent of construction is green, although that looks to grow over the next few years.

2. Owners are too afraid to measure their building performance -- In order to prove breach of contract or failure of products, performance needs to be measured. But if owners show that their buildings are not achieving the energy efficiencies or cost savings or occupant health benefits promised, the owners themselves may be open to suits from occupants, investors, etc. The owners' strategy: Better to keep one's head in the sand.

3. Economic downturn -- As builders, developers and management companies struggle just to survive, companies do not have the extra capital to spend on expensive litigation.

4. It's just a matter of time -- Green buildings are too new and the technologies have not been in place long enough to fail. As more green buildings are constructed, more litigation will develop.

Any other theories? Your comments are welcome.

Shari Shapiro, J.D., LEED AP, is an associate with Obermayer Rebmann Maxwell & Hippel LLP in Philadelphia. She heads the company's green building initiative and writes about green building and the law on her blog at http://www.greenbuildinglawblog.com.

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