Since last month?s Legal Forum at Greenbuild, there have been a number of articles about the increase in ?chatter? about the potential for ?LEEDigation,? the phrase which my friend and colleague Chris Cheatham coined over at Green Building Law Update some time ago to describe the type of litigation arising out of a project which fails to obtain LEED certification as anticipated. However, as we draw closer to the end of the year, I thought it might be worthwhile to consider why concerns about ?LEEDigation? might ultimately be more smoke than fire based on the green building legal experience here in 2010.
Thus began the esteemed Stephen Del Percio’s rant against the likelihood of litigation stemming solely from the failure of a given project to achieve a specific level of certification under the USGBC‘s LEED program. He lays out three primary points to consider.
Chris Cheatham responds in the comments to the article with the following:
We won?t see a huge wave of LEEDigation; there is simply not enough projects seeking LEED certification (particularly after the real estate bubble popped). But I do think we will see some of it, particularly as more projects come under LEED 2009, and as the USGBC begins to grapple with de-certification if a project fails to perform properly.
Read the whole article and the comments. I expect a more complete reply from Cheatham on his blog. All in all, great thought-provoking commentary from some of the true thought-leaders in sustainable and high-performance construction risk management.
Update: As suspected, Chris Cheatham has posted an update addressing his use of the term, “LEEDigation.”
- USGBC and LEED Certification in the Crosshairs of a Class Action Lawsuit (blhill.net)
- Douglas Reiser: Does Anyone Think LEED Mandates For Private Construction Are a Good Idea? Cities Might Be On Their Own (blhill.net)
- Construction Law Monitor: Is Failure To Achieve LEED Certification Consequential Damages? (blhill.net)