Green Building Law Blog : Green Building Lawyer & Attorney : Shari Shapiro: Calliope Communications, LLC

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CLARIFICATION:

I reworded my original post on this subject to clarify my intent. In my original post I noted that most of the conclusions of the Harvard study had previously been made by other commentators in the field. Similarly, the post noted that important sources appear not to have been considered by the authors of the study. I stand by those criticisms. My post also suggested, however, that the presentation of the study's conclusions seemed "to be nothing short of plagiarism." That was an unfortunate choice of words. I did not mean to impugn the academic honesty of the authors or their supervisors or the institution that published the study. To the extent that my words conveyed that impression, I apologize to each of them.

On May 29, 2009, Green, Inc., the New York Times' green blog announced a truly startling revelation--"Building green can open the door to plenty of legal pitfalls, a new study warns." 

To readers of this blog, this may seem to be...old news.  But not to the blogosphere and the Twitterverse.  News of the Harvard revelation spread fast and furious, as though Clarence Darrow himself had spoken on green building law from beyond the grave.

And what pearls of wisdom were revealed from the venerated halls of Cambridge? Frankly, nothing that had not been written about in hundreds of blog items and articles before. What was astounding, however, was that there was not a single reference to any of those articles or blog postings.  The Harvard piece was written as if the insights and conclusions were original.  This is not the case.

Here are a few examples:

AHRI v. City of Albuquerque

From the Harvard study at 5:

[AHRI v. City of Albuquerque] illustrates potential conflicts between municipal regulation of green building and green building efforts at the state and/or federal level. 

From my article on AHRI v. City of Albuquerque in July, 2008 at Greenerbuildings.com

 Local laws seeking to set higher green standards will be struck down if the federal government has exclusive authority to regulate energy efficiency.

Risks

From the Harvard study at 6:

Project Owners

Failure of project to achieve certification or an anticipated level of certification

Failure to qualify for tax credits

Failure to meet loan or incentive program requirements

Increased soft costs due to delays

Failure to meet anticipated or state claims in marketing or promotional materials

From Greenbuildinglawblog July 1, 2007

Finally, although the green building movement is in its halcyon days, new expectations will inevitably lead to conflict. A multimillion-dollar development project will fail to gain the LEED credits required to secure a government grant, and litigation will doubtless ensue.

From Custom Home Online February 15, 2008

Some mistakes to beware of committing in your marketing of green homes include overstatement of benefits or performance; misrepresentation, non-disclosure, or outright fraud (intentional or unintentional); and making vague, misleading claims or subjective, unverified statements.

From Construction Monthly, 2007

Suppose, for example, that an architect’s LEED Silver building, designed to such a level for the purpose of securing some type of state or local tax incentive, only received LEED Certified because of a credit rejection from USGBC due to insufficient documentation? It is not difficult to imagine the owner looking to the architect or engineer responsible for that particular part of the design for some sort of redress, particularly if documentation responsibilities were not clearly identified by contract.

From the Harvard study at 6:

Design Professionals

Higher standard of care resulting from participation in the building process as LEED Accredited Professionals

Design defects that result in failure to achieve certification or a specific level of LEED certification

Liability due to the failure of systems or components to perform adequately over the structure's lifecycle

Exclusion of warranties and services in the green building context from insurance policies or added insurance costs

From Greenbuildinglawblog, March 9, 2009:

However, the answer is not as clear for professionals who hold themselves out as a LEED Accredited Professional, or who provide additional green services, like commissioning and energy modeling. There is a credible argument to be made that a LEED AP should be compared with what a reasonable LEED AP would have done with respect to building a green building, not just what a reasonable architect or other design professional would have done under the circumstances. Further, it is not clear that a professional liability policy which covers specific design or contracting services covers negligence in providing additional green services like commissioning and energy modeling.

From Sustainable Land Development Today, December, 2008:

Accordingly, the contractual language in the design contract could provide the insurance company with ample opportunity to determine that the architect gave the owner a guarantee or warranty that the building would achieve a particular rating and to possibly deny coverage for claims arising out of the building’s failure to obtain such rating.

I could literally go through the entire publication demonstrating that each and every component has been said elsewhere before.  The Harvard team could have alleviated this situation with the liberal application of footnotes.  Instead, a compendium of a total of 15 articles are listed at the back of the publication, giving the impression that the article contains new insights into green law from Harvard. Shining a little light discovers the truth--the Harvard report is regurgitation from leading scholars in this field almost three years after we started discussing these issues in earnest.