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Legal ConsiderationsWhen Building Green
George Ruttinger, Esq.Chris Cheatham, Esq.Steve McBrady, Esq.
Agenda
– Green Building Basics
– Green Government
– Legal Considerations
• LEEDigation
• Green Defects
• Contractual Provisions
What isGreen
Building?
How do you measure “green”?
The USGBC has fourlevels of LEED:
Steps to LEED certification:
Register YourProject
Track Progress &Document
Achievement
Apply ForCertification
ConstructionCompleted
Green Government
GovernmentIncentives,Mandates
andRegulations
Federal Investments:America Recovery and
Reinvestment Act
$3.6 billionfor energyefficiency andmodernization
$4.5 billion forhigh-performancegreen buildings
$6.3 billion forthe State EnergyProgramand EECBG
$5 billion forweatherizationof homes
Most ARRA FundsNot Spent …
Green Mandate
“As a means of evaluating and measuring our greenbuilding achievements, all GSA new constructionprojects and substantial renovations must becertified through the Leadership in Energy andEnvironmental Design (LEED®) Green BuildingRating System of the U.S. Green Building Council.”
Top 10 Green BuildingBills in the Senate
The Clean Energy and American Jobs ActKerry (D-MA) and Boxer (D-CA)
The American Clean Energy and Leadership ActBingaman (D-NM) and Murkowski (R-AK)
Energy Efficiency in Housing Act (EEHA) of 2009Whitehouse (D-RI)
Livable Communities Act of 2009Dodd (D-CT)
The Expanding Building Efficiency Incentives Act of 2009Snowe (R-ME)
The School Building Fairness ActHarkin (D-IA)
Clean Energy for Homes and Buildings Act of 2009Merkley (D-OR) and Lugar (R-IN)
The Energy Efficiency Modernization Act of 2009Bennet (D-CO)
The Water Accountability Tax Efficiency Reinvestment (WATER)Act of 2009M. Udall (D-CO)
The Federal Agency Energy Efficiency Improvement Act of 2009Collins (R-ME)
State and LocalGovernments
Green Building regulationsare prevalent:
• 45 states
• 132 cities
• 35 counties
• 28 towns
• 34 state governments
• 13 federal agencies
State and LocalGovernments
Washington, DCDC Green Building Act
State and LocalGovernments
CaliforniaGreen Building Standards Code
Legal Considerations:LEEDigation
Shaw Development v. Southern Builders
Legal Considerations:LEEDigation
Shaw Development v. Southern Builders
• The Contract
Shaw Development v. Southern Builders
• The Contract
Legal Considerations:LEEDigation
Shaw Development v. Southern Builders
Legal Considerations:LEEDigation
• Allegation: Breach of Contract
Shaw Development v. Southern Builders
Legal Considerations:LEEDigation
• Allegation: Negligence
Legal Considerations:LEEDigation
Shaw Development v. Southern Builders
• The Damages
Project is designed to comply with a SilverCertification Level according to the U.S.Green Building Council’s Leadership inEnergy and Environmental Design (LEED)Rating System, as specified in Division ISection “LEED Requirements.”
Legal Considerations:LEEDigation
Hypothetical
Legal Considerations:LEEDigation
Project will be constructed to comply witha Silver Certification Level according to theU.S. Green Building Council’s Leadershipin Energy and Environmental Design(LEED) Rating System, as specified inDivision I Section “LEED Requirements.”
Hypothetical
Legal Considerations:LEEDigation
Project will comply with a SilverCertification Level according to the U.S.Green Building Council’s Leadership inEnergy and Environmental Design (LEED)Rating System, as specified in Division ISection “LEED Requirements.”
Hypothetical
Legal Considerations:Green Defects
Energy Efficiency
Legal Considerations:Green Defects
Energy Efficiency
Some Buildings Not Living Up to Green Label
“The Federal Building in downtown Youngstown,Ohio . . . has LEED certification, the country’s mostrecognized seal of approval for green buildings. Butthe building is hardly a model of energy efficiency.
According to an environmental assessment last year,it did not score high enough to qualify for the energystar label. . . . The building’s cooling system, a majorgas guzzler, was one culprit. Another was its design. . . .”
Legal Considerations:Contracts
Design-Build Contracts• One party responsibility for LEED
certification
• Pass-through clauses important
• Define subcontractor LEED responsibility
Legal Considerations:Contracts
Design-Bid-Build Contracts:• LEED guarantees dangerous
• Instead, carve out LEED responsibilities
• Contractor
• Build according to plans & specs
• Material sourcing
• Construction waste management
• Indoor air quality
Legal Considerations:Contracts
Avoid guarantees of energyperformance if you do not controloperations and maintenance.
Legal ConsiderationsWhen Building Green
Three Keys:
Green building is not a fad
Understand Emerging Federal and StateGreen Building Regulations
Clarify Responsibilities Before“Guaranteeing” Compliance
Questions?
Contact Information:
George Ruttinger, gruttinger@crowell.com
Steve McBrady, smcbrady@crowell.com
Chris Cheatham, ccheatham@crowell.com
Crowell & Moring LLP1001 Pennsylvania Avenue, NW
Washington, DC 20004
(202) 624-2500
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