The Liability Implications of Building Sustainable Design

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Written by:
Jeff Cavignac, Cavignac & Associates
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The sustainable design movement, which is about fifteen years old, has exploded in the last five years.

The Leadership in Energy and Environmental Design (LEED) Green Building Rating System was developed by the U.S. Green Building Council (USGBC) in 1998. Since its inception, more than 14,000 projects have been "LEED Certified" in the United States and thirty other countries, encompassing more than one billion square feet. It is estimated that the green building market is worth $30-$40 billion annually.
LEED was created to accomplish the following objectives:

  • Define green building by establishing a common standard ofmeasurement
  • Promote integrated whole-building designpractices
  • Recognize environmental leadership in the buildingindustry
  • Stimulate greencompetition
  • Raise consumer awareness of green buildingbenefits
  • Transform the buildingmarket

In LEED 2009, there are 100 possible base points, plus an additional six points for Innovation in Design and four points for Regional Priority.

Item Possible Points
Sustainable Sites 26
Water Efficiency 10
Energy and Atmosphere 35
Materials and Resources 14
Indoor Enviorment Quality 15
Innovation in Design 6
Regional Priority 4
Total 110

Buildings can qualify for different levels of certification depending on how many points they accumulate.

Certified 40-49
Silver 50-59
Gold 60-79
Platinum 80 points and above

 

The Issues

The advantages of a LEED certified building range from improved air and water quality to reducing solid waste.

However, these benefits are offset by some additional costs inherent in "green construction." In addition, sustainable construction principles are not understood by many design professionals or contractors. This could require additional research, and the confusion can lead to disagreement between owners, designers and contractors. Availability and costs of building components that meet LEED standards could be a problem.Then there is the added cost of having the building certified-correspondence with the USGBC, LEED design-aid consultants and hiring the required commissioning authority.

The USGBC points out that these higher initial costs will be more than offset by lower operating costs over the life of the building, and employee productivity gains incurred as a result of working in a healthier environment. In addition, there are potential tax credits for developing a green building as well as possible variances from local building codes.

A report released in October 2009 by USGBC's Chicago and Partners evaluates efficiencies of LEED certified buildings in Illinois. What they learned was LEED buildings were performing only 5 percent better than non-LEED buildings throughout the region. Platinum and Gold LEED structures were found to be "no more efficient" than Silver or basic LEED certified buildings.

What does this mean for designers and constructors? Many clients are expecting to recoup increased costs for design and construction of a LEED building through better performance and energy savings. If these expectations are not met, fingers will be pointed.

The Challenges

  • Owner Expectations -If an owner expects a "Gold" certified building and receives a "Silver," he may want someone to make changes, so it can rise to the "Gold" standard. Similarly, if an owner expects energy savings to offset increased construction costs and those savings are not there, disputes may/willarise.
  • Scope/Schedule-Green buildings may require additional research, approvals and unique coordination challenges. Unless you have built these into your fee and schedule, you may end up underpaid with a schedule that is impossible tomeet.
  • LEED Reporting Requirements -LEED 2009 requires that certified properties share data on energy and water usage in their building for at least five years. Although this is the owner's responsibility, the owner could transfer the research to the design professional or design/build contractor. This five-year reporting requirement also creates uncertainty: What if a building initially qualifies for certification but subsequently fails to comply with LEEDrequirements?
  • Guarantees-You may be asked to "guarantee" a certain level of certification, or your marketing materials might imply that you are an expert in LEED design or construction. Recognize that professional liability policies only cover your negligence, not for risk you assume contractually that goes beyond the
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