Is There a Dark Side to Green?
Carl Circo, Professor of Law at the University of Arkansas
By Professor Carl J. Circo
A green building is environmentally sustainable. That is, it meets the needs of the project’s owners and occupants in a way that minimizes adverse impacts on the environment. A green building is more sustainable than a conventional building because it conserves more energy, consumes fewer resources, emits lower levels of contaminants, and generates less waste during construction as well as over its entire life cycle.
The green building movement exemplifies the recurring phenomenon in which law and legal practice evolve to adapt to developments in technology and social policy. As legal attention to the green building movement continues to grow, the movement is beginning to raise many interesting and important legal issues.
There are, for example, broad policy questions about the role that government should play in support of sustainability. Should the government provide incentives and impose mandates to increase the number of private projects that meet green building standards? Should local zoning ordinances, building codes, and other land use laws encourage or even require green buildings in the private sector? To what extent is it appropriate and wise for land use regulations and building codes to incorporate green building standards promulgated by industry organizations? How should government pay for green building programs?
In addition to presenting these policy and theoretical issues, the movement also beckons lawyers in several practical ways. For example, many lawyers have qualified as LEED Accredited Professionals or LEED Green Associates under the certification processes of the Green Building Certification Institute, which is in turn recognized by the U.S. Green Building Council. In the transactional context, attorneys for landlords and tenants have been developing green leases, and attorneys for design professionals, developers, and building contractors have started to add new provisions to construction and design contracts to allocate the special risks associated with green building objectives. From a litigation perspective, lawyers are now evaluating potential liability risks involving green building issues ranging from professional malpractice claims for designs that fail to deliver intended energy efficiency, to construction delay and defect claims that seek damages when a building owner loses anticipated tax credits for a sustainable project.
An article that appeared a few months ago in the Construction Lawyer raises an especially interesting question for sustainability advocates: Is the commercial appeal of sustainable construction tempting too many professionals, including lawyers, to put green marketing ahead of either sustainability or the specific interests of their clients? Ujjval Vyas and Edward Gentilcore write of their concern that “the green building movement has begun to believe its own press releases.” (Growing Demand for Green Construction Requires Legal Evolution, 30 CONSTRUCTION LAW., Summer 2010, at 10.) The authors primarily address a series of technical legal considerations that the green building movement presents for construction lawyers, such as its potential to alter the standard of care for design professionals and the demand it creates for a more precise allocation of legal responsibility for a project’s green objectives. But running in the background of the piece is the overarching theme that lawyers should approach the legal aspects of green building projects with the same level of critical analysis that they routinely bring to other aspects of the practice of law.
Green building literature often uses such pejorative phrases as “greenwashing,” “green marketing,” and “the sustainability bandwagon” to suggest that not everyone who promotes sustainable construction does so with entirely pure motives. How common is it, and how objectionable, for professionals, including lawyers, to claim special expertise to garner more business as much as to advance sustainability? For that matter, even a law professor might elect to write on green buildings in part because it is relatively easy to get a good law review placement for a green building article.
The point here is simply that lawyers representing clients involved with green building projects should ask hard questions. How relevant to the client are the specific green credentials touted by a project participant? To what extent is an industry or trade group using the green building movement to promote its own economic interests? What objective standards are available to measure and test proposed energy efficiency or other sustainable objectives? Where is the data to support claims that certain green building features enhance worker productivity or promote occupant health? Does a proposed public mandate or incentive for sustainable construction pass a rigorous cost-benefit analysis? Who should make meaningful representations about a building’s green features or accept liability when a project does not achieve the promised green status or meet its sustainability goals? To what extent are the social policy objectives of the sustainability movement aligned with the client’s own interests? As green building fever continues to spread throughout the construction industry, clients will benefit from a dose of legal skepticism.
