As I mentioned briefly in my Greenbuild post at Green Building Law, legal issues, especially risk and liability associated with building green, were little discussed at Greenbuild.
A bunch of green building lawyers were sitting around and speculating why this might be. The conclusion we came to was that the U.S. Green Building Council did not want to highlight concerns or risks associated with building green at its feel-good festival. This is a mistake.
Lawyers, in their best role, are advisers that help clients avoid potential pitfalls. Someone once said that if you are involved in litigation, you have already lost. Litigation is expensive, time consuming and essentially a zero-sum game. Much litigation could be avoided if clients came to their lawyers and discussed potential legal liability ahead of time and took proactive steps to limit their exposure.
Green building poses some obvious legal risks which I have discussed here at GBL previously. Among these risks are obtaining local building and zoning approvals, allocating responsibility for maintaining green improvements between tenant and landlord, securing public financing, negotiating with insurance and financial institutions and resolving disputes over green building projects that fail to achieve their sustainability goals.
All of these legal risks can, at least to some extent, be managed by obtaining good legal counsel at the inception of a green project. For example, contracts between developer, contractor and architect should allocate responsibility for designing, implementing and obtaining green certification. Leases between tenants and landlords should contain clauses that delineate responsibility for maintaining green improvements and allocate the benefits of going green, like tax rebates, fairly.
The USGBC is not educating its members on these legal considerations. However, ignoring legal risks and taking no proactive steps to manage these risks do not make them go away. Instead, this attitude paves the way for costly, high profile and damaging litigation down the line. Nothing would dissuade developers from going green and raise the cost more than this.
Several green lawyers I am in touch with are proposing a panel on Green Building Law for next year's Greenbuild. I hope the USGBC decides to educate its membership and accepts our proposal.
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.