Leed Certification and the Green Movement: Environmental Consciousness or a Gateway to Litigation?


An increase in US and global energy costs, coupled with awareness about the environmental problems facing our world have started what is known as “The Green Movement”.  Consumers, politicians, opportunists, and others in the mix have stated that Green building is not only a trend, but possibly the only mode of building project delivery worthy of consideration.  The media and a war in Iraq have aided in turning the Green movement into an indefinable “good” thing that has credibility without question, regardless of what is actually known.  Realtors, Developers, Lenders, Lawyers and the like use buzzwords like “Leed” to indicate a false sense of knowledge, and I would like the opportunity to address what I know and don’t know, coupled with what nobody knows.

LEED certified buildings have drawn criticism for not delivering what they promise:  energy efficiency, environmental harmony, reduced costs, and other eco-friendly benefits.  Because I do not know what these experts, on both sides of the debate know, I will focus on the portion of the equation that is often ignored.  What are the non-environmental costs and pitfalls involved with Green or Leed building?

LEED certification need not be confused with sustainable, smart development.  While I am not a tree-hugger, I am certainly in favor of a world which knows no diminishing resources.  I am also a realist, however, and practicing in the construction field for the duration of my legal career I do have the knowledge to recognize litigation festering.  Ever since I learned about EIFS, and the catch phrase “dissimilar materials”, I have learned that the concept of applying new technology to existing practices in the home building industry typically results in as many negatives as positives.

There are no universally accepted standards for this type of construction.  To qualify that statement, let me state that  there is  no universally accepted standard for
what qualifies as green or, sustainable building.  While some municipalities in states such as California have enacted standards recently, I will guarantee you that those standards fail to scratch the surface in comparison to what is actually intended by code regulations.  While there is not much doubt that many green projects will fail to deliver the promised environmental savings, there is an almost greater certainty that the mixing of technology with tradition will yield problems that we have yet to recognize.

At one time in the Southeast, EIFS was not a bad word.  It became a bad word due to several factors which, arguably, had nothing to do with the actual quality of the product.  Large corporations do not make a habit of manufacturing products that fail in a controled, laboratory setting.  The actual performance of a building product, philosophy, or practice can’t be measured inside the confines of a sterile environment, however, as external factors are not able to be explored or anticipated.  Green building incorporates products and practices which make tremendous laboratory sense, yet remain untested in the field.  Because construction defects are latent in nature, punch list inspections are unlikely to reveal issues with green building.

To be fair, I must state that the green concept will be valid for many years.  Further, green projects are positive in thought, if not practice due to their serving as evidence that our world is forward looking in terms of environmental policy.  Having said that, please realize that this is “new” technology and, just like an unproven antibiotic, it has yet to face true field trials and tests.  There doesn’t seem to be any adequate quality control, as there are thousands of LEED certified professionals and “Green” industry start-up companies within a three state radius.

I have no conclusory statement to make regarding the construction industry and green building because we are still in the “wait and see” period.  Due to the fact that construction defects are often latent, I do not know when or if we will begin to see the problems associated with the philosophy.  To be continued.

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4 thoughts on “Leed Certification and the Green Movement: Environmental Consciousness or a Gateway to Litigation?

  1. I share your concerns about the unintended consequences of LEED applications on the construction industry. Contractors must be astute risk takers given the high costs of construction, and profit margins that are relatively low. The ambiguity of LEED standards injects unknowns in the bid preparation process that will likely create a greenhouse effect on litigation.

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