Camouflaging Construction Litigation in a Green Suit

Camouflaging Construction Litigation in a Green Suit

Image CC licensed by Flickr user joevare

My good friend and savvy LEED litigation sleuth Steve Del Percio uncovered a case filed in New York that involves, among other things, an allegation of failure of the heating system to perform properly.

The luxury condominium building at One and Two River Terrace in Manhattan was advertised as LEED Gold. The complaint alleges that an energy audit conducted by the plaintiffs revealed deviation of:

"49% over the USGC LEED and BPCA [Battery Park City Authority] standards in the cumulative size of holes and cracks allowing infiltration of cold air."


But this claim is about the performance of the heating system -- failure to heat -- not its energy performance. The other claims in the case are similarly basic construction law claims -- the failure of a railing to protect from falls and frosted glass windows where there were supposed to be clear glass, for example.

The case incorporates allegations regarding the green components of the project as support for its regular construction claims, not for failure to achieve green requirements. In the five causes of action against the architects and the cause of action against the engineer, failure to construct a green building is nowhere to be found. The causes of action against the developer do not include a cause of action for false advertising regarding the green components of the building. In short, throwing in the energy audit information and noting that the building was billed as LEED certified (it's a LEED-Gold hopeful) is the construction litigation equivalent of greenwashing.

This is not to say that the case could not develop these claims through an amended complaint if more information is uncovered during discovery. Indeed, with the press that the case is receiving -- it got a mention in yesterday's Wall Street Journal -- these areas might be developed further.

Shari Shapiro, J.D., LEED AP, is an associate with Obermayer Rebmann Maxwell & Hippel LLP in Philadelphia. Shari heads the company's green building initiative. She also writes about green building and the law on her blog at, where this post originally appeared.

Images CC licensed by Flickr user joevare.