When the Green Building Fails - Thinking Ahead

When the Green Building Fails - Thinking Ahead

September 1, 2009 05:46
by J. Wylie Donald

One knew it was only a matter of time before a green building was no longer green. (What is the metaphor:  brown? wilted?). And it is not just a single building, a whole crop of buildings is not meeting the promise (some would say hype) that accompanied their opening. 

In an article in Sunday's New York Times, Some Buildings Not Living Up to Green Label, Mireya Navarro reports on a federal office building in Youngstown, Ohio which, with its white reflecting roof and lots of natural light, is LEED certified. But it also can't qualify for the EPA's Energy Star program. The General Services Adminstration's audit noted that its LEED points included native landscaping but not structural energy-saving features.

This finding is consistent with research by the New Buildings Institute, which concluded that nearly a quarter of LEED certified buildings do not meet the energy efficiency predicted by their design. Worse, many of those buildings use more energy than non-LEED certified comparable existing building stock.  Click here for PDF.

This is not just an issue of heating bills.  Tax credits, grants and loans, marketing and financing may all be tied up with the assertion that the building is green.  If it is not, it can jeopardize the viability of the entire project.  So what is an owner to do? 

Unfortunately, the right question may be what should an owner have done?  If a building does not perform, it is likely that the cost-effective remedy should have been implemented even before the design was complete, by which I mean the contract language.  Mary Jane Augustine (full disclosure:  Ms. Augustine is my partner) in a cutting edge presentation for the Practising Law Institute addresses the contract issues concerning achievement of LEED certification.  Her writing, Project Owner Strategies for “Greening” Design and Construction Contracts (PLI Green Real Estate Summit, Mar. 20, 2009), is required reading and her ideas are easily adapted to a situation where the green building, even if LEED certified, is no longer meeting those criteria.

The key is a set of provisions that confirm the centrality of achieving "green".  The contracts with the architect and contractor need to be explicit about what the green goal is.  There should be representations that the design and construction professionals are competent in the "green" area, that the key employees will remain on the job and that the owner has relied on the architect's and contractor's competence in entering into the respective contracts.  The design and construction professionals need to agree to perform their jobs in accordance with Green Building principles and practices and provide performance-based remedies (e.g., agreement to return to the project during a run-in or trial period in order to ensure the achievement of the green goal). One may not be able to obtain an express warranty that the building will be green, but one should be able to de-construct the contract into component parts that make a contract remedy for a green building's failure more achievable.

All that being said, two things must be remembered.  First, a building, like your car, must be kept up.  No contract language can prevent inadequate performance if the equipment is not maintained.  Second, performance is not non-conforming if the use of the building differs from the basis on which it was designed.

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