Minimum green building standards promulgated by the
International Code Council (ICC) and American Society of Heating,
Refrigeration, Air-Conditioning Engineers (ASHRAE) may dramatically
impact the U.S. construction and real estate markets. The primary
goal of these standards is to articulate minimum code requirements
for sustainable building practices. However, with the introduction
of new rules always comes risk. More specifically, when these
minimum criteria for green building practices are incorporated into
building codes, architects, engineers, and builders will face
increased litigation risk for green building.
In January 2010, ASHRAE released the first comprehensive green
building standard written in mandatory code language –
ASHRAE 189.1, Standard for the Design of Hi-Performance Green
Buildings Except Low-Rise Residential Buildings. ASHRAE
developed this standard with the assistance and partnership of U.S.
Green Building Council (USGBC). The ICC is developing its own green
building code titled the International Green Construction Code
(IgCC) – to be finalized in March 2012 in collaboration
with ASTM International and the American Institute of Architects
(AIA). Neither standard is a green building rating system, but
rather a green building code to be adopted on a mandatory basis by
jurisdictions across the country and around the globe. IgCC will
include ASHRAE 189.1 as a jurisdictional compliance option, meaning
189.1 can be used in any jurisdiction that also adopts the IgCC.
Unlike the plethora of green building certification systems
flooding the market these days, 189.1 and IgCC will be the green
building codes.
What does this mean for architects, engineers, and builders? It
means that these and other building stakeholders should be mindful
of jurisdictions that adopt and incorporate the requirements of
189.1 or IgCC into their building codes. Again – these
are not voluntary provisions. In such a jurisdiction, architects,
for example, will be required to design a building that satisfies
the mandates of these green building codes. If the building design
violates a code provision, which results in damages, the architects
could be held negligent per se.
Have any jurisdictions adopted 189.1 or IgCC? Not yet. The
ICC's IgCC will not even be finalized until next year. But
these authors believe that green building codes will proliferate in
the next five years. The ICC is a big-time player in the building
code business. It develops the codes used to construct residential
and commercial buildings such as homes, schools, and hospitals. So
the ICC's active involvement in advancing sustainable building
practices is significant because, historically, local building
regulations have been based on model building codes. Meeting green
requirements will likely become as critical to code compliance as
satisfying electrical and fire safety requirements.
Unfortunately, the adoption of green building codes may increase
the litigation risks for architects, engineers, and builders
involving three critical areas: (1) building code non-compliance;
(2) deficient employee training/defective design or installation in
relation to new green building materials; and (3) inadequate
contract language.
It sounds obvious, but at a minimum, building designers and
contractors must construct buildings according to code. That means
they need to (1) understand the green code requirements of their
jurisdiction, and (2) effectively inform and train their employees
and subcontractors on green techniques and methods in order to
satisfy green building code requirements. The education and
training component cannot be overstated. While subcontractors may
be familiar with green code categories like site selection and
energy efficiency (based on experiences with LEED certification),
the stakes are a bit higher with an occupancy permit on the line
and perhaps the risk of liquidated damages for delays.
An integral piece of the education and training component involves
the use of "new" green building materials. Shortly after
LEED's introduction in 2000, a wave of innovative green
products entered the market with the promise of
helping builders achieve certification. As LEED's
popularity grew, so did the number of available green building
materials (i.e., green roof, air barrier system installation, low
consumption urinals). While such devices are exciting and new, they
may not be as reliable (or at least as tested) as the more
"traditional" building materials. It is critical for
engineers and contractors to select and use these new green devices
with care. Research your products, as well as the manufacturers who
supply them. If feasible, encourage your green suppliers to install
the materials themselves (that would probably be their preference).
And if you the contractor (or more likely subcontractor) are going
to oversee or actively participate in the installation, proceed
with caution. An improperly insulated green roof can be a very
messy and expensive problem.
It is essential for each building stakeholder to specify their
obligations within the four corners of the green building contract
and, to the extent possible, allocate their risk accordingly.
"Form" green building contracts, even those from the AIA,
may not accomplish these objectives. Don't be foolish. Retain a
lawyer to review the contract. Negotiate terms and specify which
party is responsible for what action step(s) in terms of the
overall building project. If a green building is ultimately not
code-compliant or underperforms in terms of energy efficiency, a
clear contract can resolve (or at least help clarify) complicated
questions about potential liability.
Voluntary green building certifications like LEED, green building
tax incentives, and innovative green building materials exploded in
popularity within the last decade. Building sustainability was
exciting, new, and the possibilities were limitless. Like being in
love for the first time, building stakeholders were smitten. But
now the green building industry is looking for a bigger
"commitment" from its stakeholders. Mandatory green
building codes, reduced state and federal dollars, and more
rigorous energy performance metrics merit careful attention from
architects, contractors, and builders. Green building goals are
transforming into green building requirements, which means greater
green building risks. In sum, proper preparation and timely
attorney consultation can reduce liability exposure.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.