West Coast Green Panel Discusses Risk Management for Green Building Projects

A panel discussion at the recent West Coast Green conference touched on some important liability issues as they relate to green building and sustainability.

I did not attend West Coast Green last week, but was pleased to see that the conference included a panel discussion about the emerging legal risks associated with building green, titled “Packing a Parachute: Practices that Minimize Risk and Prompt Best Use of Green Features.” Some of the panelists’ remarks (which were published yesterday in an article on GreenerBuildings.com) resonated particularly salient in light of recent posts here at gbNYC, particularly with respect to how green projects are marketed, as well as our presentation of the country’s first green building litigation.

With respect to green building contracts, the panel suggested that there is no “magic green paragraph,” and stressed that documents need to be tailored for the particular circumstances of each individual green project. We noted the same in the context of the Shaw Development v. Southern Builders case, pointing out that “the critical lesson from the lawsuit is that there is no one-size-fits-all form agreement for a green construction project,” particularly in the current regulatory climate where mandates and incentives vary in every jurisdiction.

In terms of representing a project’s green features or projected outcome under a third-party rating system application, the panel noted the importance of refraining from making such statements in the absolute, and reviewing the new green vocabulary to reduce the risks associated with misinterpretations. Similarly, on Monday, we pointed to remarks made by the developer of Perkins Eastman-designed 303 East 33rd Street that suggested the project would be LEED-certified, and noted that owners should be careful in how they represent their green projects to potential residential purchasers or commercial tenants.

Attorneys Paul D’Arelli and Douglas White, who participated on the panel, gave kudos to West Coast Green for including a discussion of green liability issues at the conference, noting that many green building proponents “bristle” at the possibility that green building may implicate unforeseen risks. We’ll join in their remarks and hope that future conferences include similar discussions of how green project stakeholders can continue to mitigate against the emerging risks that sustainable construction may implicate, particularly because we’re starting to see a lot of these considerations start to play out in practice.

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