What Is the Definition of Green?

Green building may also describe any combination of sustainable building systems that are not necessarily subject to formal certification or rating programs. Carbon neutral/net zero efforts are among the most aggressive, while simpler efforts may include rainwater harvesting and installing compact fluorescent or LED light bulbs.

By Adam T. Mow, AIA, Esq.

As a construction attorney, my clients often ask me about legal risks of their professions. This discussion has lately included the risks associated with green buildings. Buildings using green design and construction practices are no less subject to claims against architects, engineers, and contractors than any other building. In fact, they have the potential for more claims. To see why claims may be more prevalent on these projects, we must start with a seemingly basic question: What is the definition of green?

Answering this question illustrates some of the problems that could arise. That is, green may mean different things to different people. The U.S. Green Building Council and its Leadership in Energy and Environmental Design (LEED) certification program is arguably the best known and widely accepted green building certification system.

It focuses on building elements and systems and applies a point system to provide its rating level. But LEED is not the only game in town. Green Globes is a certification program promoted in the United States by the Green Building Initiative. Its rating process, such as how points are tallied, is different than LEED even though it also evaluates building elements and systems. But wait, there’s more. Energy Star is a program of the U.S. Environmental Protection Agency that is more narrowly based on energy efficiency. LEED, Green Globes, and Energy Star are very different programs with very different results. One may be preferred over another depending on a project owner’s interests and goals.

Finally, green building may also describe any combination of sustainable building systems that are not necessarily subject to formal certification or rating programs. Carbon neutral/net zero efforts are among the most aggressive, while simpler efforts may include rainwater harvesting and installing compact fluorescent or LED light bulbs.

Where does this leave us? The first step in any project is to ensure that all project participants are using the same definition of green. A lawsuit may be virtually inevitable if the members of the project team have different definitions—and more importantly, expectations—of what green means. The best practice to avoid this confusion is to incorporate a specific, shared definition into the project contracts.

For example, if LEED Silver certification is the owner’s goal for the project, the owner’s contracts with the architect and contractor could state: “A goal for the project is to achieve LEED certification of Silver or better. The owner, architect, and contractor shall endeavor to achieve this goal through their collective and cooperative efforts, but they make no representation, guarantee, or warranty that this goal will be achieved.”

This contractual language accomplishes several important things. First, it states the green goal and references a qualitative and/or quantitative system to measure the achievement of the goal. Second, it states that the goal is shared by the entire project team. In other words, achievement of LEED certification is not the sole burden of the architect or the contractor.

The owner is also committing to work toward achieving this goal. Third, the language expressly disclaims that the goal is a requirement of the project. If LEED Silver certification is not obtained, there should not be any claims between the owner, architect or contractor for not achieving this green goal.

Environmentally responsible design and construction practices are now considered on almost every project. While interest in these practices is laudable and worthwhile, construction participants must clearly communicate their expectations so that misunderstandings do not escalate into claims. Jointly defining the meaning of green is key to beginning any project. Through contracts, this definition can assist the project team in collaboratively fulfilling this interest.

Adam T. Mow Is a construction attorney and licensed architect with the law firm of Babcock, Scott & Babcock in Salt Lake City, He can be reached at 801-531-7000 or adam@babcockscott.com.