While the green building movement has a great deal to look forward to, there is an elephant in the living room — downplayed in some quarters as the product of worrying minds — that we need to address head on, and that’s the risk of liability.

One of our most pressing issues is the fact that some buildings designed to be green fail to live up to expectations. And in business, as we all know, where there are failed expectations there are lawsuits. The good news is that this period of increased legal action, or the threat thereof, will in fact motivate the kind of clarity and measurement that both reduces liability risks and results in better buildings.

In many ways, it’s an issue created by success. During the past few years, there has been a groundswell of support for building green, to the point that there are now many, many believers. More building owners are investing the up-front costs associated with designing, building and certifying sustainable structures, and we are fast entering an era in which the majority of design and building professionals have a green component to their business.

Yet problems arise because building owners, designers and builders often have very different ideas of what constitutes a successful green building, and they fail to explicitly communicate their thoughts at the outset of the project. As one might expect, these issues are compounded when the parties are relatively new to the green building process.

Newell Rubbermaid’s global headquarters in Atlanta has earned recognition from Green Globes.

Potential Problem Areas

Broadly put, the two main areas for dissatisfaction are a building’s failure to achieve a promised level of green building certification and its operational performance.

The first area is problematic in that it may impact the building owner’s ability to qualify for a grant or tax incentive, which the owner may have counted on to offset the investment. In the case of public buildings, certification may also be required by law — and we can expect to see more of this in the private sector as governments increasingly seek to address climate change and other issues through energy efficiency, reduced carbon dioxide emissions and other aspects of sustainable construction.

In terms of performance, there is an expectation that green buildings will, in addition to reducing environmental impacts, offer lower energy and water costs, less maintenance and other long-term benefits to the building owner. However, while the design may incorporate a wide range of green features, there are, of course, a tremendous number of variables between a building’s design and occupancy that can impact operational performance.

These potential areas of misunderstanding can be mitigated by following good business practices that facilitate clear communication and common expectations between building owner designer and rating organizations.

Make Sure all of the Stakeholders Understand and Agree

An integrated design process is one in which all of the disciplines involved in a project work together from the outset, including the architect, engineer, contractor, building owner and others. One of its main benefits — and the reason it’s rewarded in rating systems such as Green Globes — is the fact that synergies are often achieved when the various parties can contribute their advice and expertise from the earliest design stage, and are able to perform their own functions with increased knowledge of the building as a whole. The need for an integrated process continues beyond the building’s design through construction and subsequent use. It allows all of the relevant parties to agree on the scope of the project, its goals in terms of sustainability, cost and time, and accountability if the stated goals aren’t met.

Establish a Process for Measuring Success

While certification may imply a building is expected to perform better than its non-green counterparts, certification is not an indicator of actual performance.

The Green Building Initiative (GBI) formally addressed this issue last year when we introduced the Green Globes module for Continual Improvement of Existing Buildings, which is Web-based and provides a practical way to evaluate, rate and strive to improve commercial buildings on an ongoing basis. If the goals of a building include performance outcomes such as a certain level of energy or water efficiency, a process must be established to measure performance and determine whether those goals are being met.

While putting desired outcomes in writing is important, contracts should reflect any decisions made regarding scope, objectives and accountability. Just as green buildings, by their nature, improve upon the status quo, standard contracts may need enhancing to fully protect the various parties. It’s in the interest of everyone concerned to ensure that all of the project’s agreed upon attributes are included and to scrutinize the wording for ambiguities that, should disputes arise, could result in legal action.

When viewed in the context of the many advances being made in green building, the potential risks associated with liability are in fact an opportunity. In all of the ways described above — from encouraging clear goals to increasing the focus on measurement — the efforts of design and building professionals to protect themselves are helping the movement to mature. This can only encourage more people to adopt sustainable practices.