Who's Afraid Of The Big Bad Lawyers?

As I mentioned briefly in my Greenbuild post at Green Building Law, legal issues, especially risk and liability associated with building green, were little discussed at Greenbuild.

A bunch of green building lawyers were sitting around and speculating why this might be. The conclusion we came to was that the U.S. Green Building Council did not want to highlight concerns or risks associated with building green at its feel-good festival. This is a mistake.

Lawyers, in their best role, are advisers that help clients avoid potential pitfalls. Someone once said that if you are involved in litigation, you have already lost. Litigation is expensive, time consuming and essentially a zero-sum game. Much litigation could be avoided if clients came to their lawyers and discussed potential legal liability ahead of time and took proactive steps to limit their exposure.

Read the rest of this post at Greenerbuildings.com

Strengthening States' Authority To Enact Tougher Green Building Standards

Treehugger has an article identifying 7 executive orders which Obama should sign to protect the environment.

The one which interested me calls for protecting stronger state laws from weaker federal ones

The next President should [...] should amend the existing Executive Order on Federalism to strengthen provisions setting forth a presumption against preemption; require agencies to provide a written justification for preemption; and require that, when a federal statute allows states to adopt more stringent standards or seek a waiver of statutory preemption (as in EPA's denial of California's Clean Air Act waiver), agencies must provide a written justification to the White House before denying the state's regulatory authority or waiver request. As is the case with the existing Executive Order on Federalism, these recommendations are consistent with the goals of the various statutes under which the environmental, safety, and public health agencies operate, including the National Environmental Policy Act.

The preemption issue has proven to be extremely significant in green building regulatory challenges. In AHRI v. City of Albuquerque, we saw an effective challenge to Albuquerque's green building code based on weaker federal energy standards for HVAC equipment. See my post here for more on the AHRI v. City of Albuquerque case.

However, an executive order will not go very far to prevent federalism challenges to green building regulation. For example, it would not have effected the challenge to Albuquerque's green building code because 1) the City of Albuquerque never applied for a waiver, so the executive order would not have applied in that case, and 2) Congress specifically preempted state regulation of energy efficiency of HVAC equipment.

See related posts on green building law and federalism here

Green Litigation--The Next Wave Of Green Building

As I sit here today, I will guarantee that the next year will bring the first wave of green litigation--litigation over buildings that fail to live up to their green billing. For example, in Australia, the Melbourne City Council's new state-of-the-art office building, which was "green star" certifiied, many of the green features do not work. http://www.theage.com.au/news/national/civic-showpiece-failing-to-deliver/2007/08/28/1188067111145.html The daylighting proved too dim for the workers' needs, a greywater system was not operational. Worse still, some are causing active issues, like allowing legionella into the cooling system.

Who is to blame when the green features fail? Will the contracts among the relevant players--architect, general contractor, developer, commissioner--be robust enough to allocate the liability? I doubt it--and lawyers, judges and juries will be introduced into a brave new world of environmental litigation. With new technology and lots of hype comes broken promises--and with them, litigation.