Last month, those of us who were in Phoenix for Greenbuild witnessed the continuing strength and momentum of the U.S. Green Building Council (USGBC) and its Leadership in Energy and Environmental Design (LEED) rating system. More than 28,000 people made the pilgrimage to Phoenix for this well-organized conference. Taking into account the shows continued growth and popularity, the USGBC seems to have gotten a good grasp on handling the conference (considering there was approximately the same number of attendees as last year but nearly double the number of exhibitors).

 

Last month I discussed one of LEED’s main criticisms, that ‘new construction’ LEED buildings are not performing any better than their traditionally constructed peers once in operation. This month I want to address another major criticism, that LEED might add risk to a project’s liability due to a limited number of highly publicized insistences of poor contract writing.

 

I regularly receive articles about and invitations for webinars detailing legal or other risks associated with the pursuit of LEED certification. As I stated last month, much of the risk associated with LEED–whether perceived or real–stems from a lack of project experience and understanding of the rating system and/or certification process. While the USGBC’s growth as an organization and the popularity of LEED continues to skyrocket, many design and construction firms are still trying to get their arms around how this inevitable paradigm shift will affect the delivery of their services. 

 

A recent article on mlive.com, Lawyers anticipate LEED-liability suit, provides a good example of the potential problems that many believe will arise:

 

“Although there haven’t been any true precedents set in these matters, Aileen Leipprandt, an attorney in Miller Johnson’s Grand Rapids office, is aware of one case that came close.

 

‘One of the things that’s driving this discussion is there was a case out of Maryland — the only one we’ve found so far — where the claims between the parties involved a problem when a project did not achieve certification that was intended’ Leipprandt said.”

 

The ultimate question of who is to blame for failing to achieve a sustainability goal like LEED certification or an energy performance benchmark is now being asked. Can any individual consultant or firm bear full responsibility for falling short of the expectations of the owner or project team?

 

Where firms start to get into trouble is when they agree to any guarantee or warranty in a contract. This just isn’t wise language to include in any design and construction contract. Risks associated with a LEED project are no different than any other building effort, except that some members of the design and construction team may still not have much experience with pursuing LEED certification. Additionally, the pursuit of LEED is a team effort in which every member of that team plays a part in attaining LEED certification, including the owner. 

 

The design and construction community needs to recognize that not all buildings pursuing LEED certification will achieve this prestigious award. For this reason, it’s important to write proper contracts. However, we also need to inform our clients of the role they must play in this process and what to expect in return. While a holistic and integrated design approach will help us get most of the way there, it will take efficient communications and a combined effort between all stakeholders to manage expectations and mitigate liability.