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Photo Credit: © Daniel J. Sheridan, 2011. All rights reserved. This is a photograph of the recently constructed Frick Chemistry Building at Princeton University. Sustainable building features include a photovoltaic panel array that generates power while providing shade to the glazed atrium roof, a gray water system to collect and recycle storm water for non-potable uses, and landscaped rain gardens and bio-filtration areas. For more information concerning Princeton's commitment to creation of a sustainable campus environment, visit
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A Conversation at the Crossroads of Law and Sustainability

Category: Financing

Second Annual Greenbuild Legal Forum Highlights Unique Challenges and Opportunities for Green Building Lawyers

On Thursday I attended Greenbuild’s second annual Legal Forum, and it did not disappoint.  Organizers Susan Dorn (General Counsel to USGBC) and green building law pioneer Stuart Kaplow assembled an excellent panel to discuss topics ranging from litigation and green construction contracts to the latest insurance products and greenwashing. According to Susan, there are now approximately 1,100 LEED accredited professionals (LEED AP or LEED Green Associate) who now identify themselves as being related to the legal services industry.  Granted, they are not all lawyers in private practice, and there are many more lawyers practicing green building law who are not LEED accredited.  And while the number is modest in view of the total lawyer population in the U.S. (which, according to the American Bar Association, is approximately 750,000), it evidences the growing relevance of this legal specialty.

Leading off the presentations was David Blake of Seyfarth Shaw’s Washington, D.C. office who discussed green building risks, laws and litigation. David offered a concise and informative summary of thirteen LEED-related disputes which have been either decided or filed since 2007. In this wide array of cases, there is an extraordinarily diverse group of claimants, defendants and issues.  Among the cases involving public entities, the primary claims have involved bid protests and challenges to code requirements, whilst private parties have addressed failure to obtain LEED certification, non-satisfaction of LEED standards, additional costs of LEED compliance, and whether and to what extent “green” damages are cognizable and calculable. Clearly representing only the LEEDing edge (sorry, couldn’t help myself) of green building litigation, David’s presentation offered valuable insight into the depth and breadth of affected parties and the diversity and complexity of legal issues unique to green building.

Following David was a great panel discussion of green building construction contracts by Tom Giordano of Lend Lease, Mike Deane of Turner Construction and Dave McPherson of Watt, Tieder Holfar & Fitzgerald. This primary focus was on allocation of contractual responsibility and potential liabilities of owners, design professionals and constructors for achieving identified “green” targets, be they LEED certification, energy efficiency, or some other green building performance metric. Issues such as assigning responsibility (often at the “task” level), waivers of consequential damages (both inside and outside of the government contracting context), and allocation of risk of non-performance were discussed, and helpful examples from actual projects presented. Giordano and Deane both emphasized the necessity of a careful (and sometimes surgical) allocation of responsibilities, as well as a cooperative spirit when negotiating these matters.  In some respects, the discussion echoed several themes identified in Wednesday’s presentation on “Sustainable Building Law” during which Joshua Ballance, Associate Counsel on the American Institute of Architects’ Contract Documents team, provided a helpful overview of the AIA’s Guide for Sustainable Projects (a free download). Rounding out the discussion of transaction and contract issues was Keith Sutherland of Stewart McKelvey, a leading Canadian firm. Stuart covered key “green leasing” issues, with particular attention to Canada’s Realpac Model Green Office Lease. This form, which incorporates a separately negotiated “Environmental Management Plan”, provides a useful drafting approach for incorporating green lease requirements.

Next up was Jeff Lesk of Nixon Peabody’s Washington, D.C. office who discussed legal issues in the context of green building financing.  This guy is not only on top of his game, he has true passion for this stuff. Realistic about the nature of the challenges facing green building finance, including the glaring lack of standards through which the real property appraisal community might quantify the economic benefits and enhanced asset values of green buildings, Lesk focused instead on the availability of a variety of tax credits (and associated monetization schemes) as the best hope for financing green building projects.  Renewable energy tax credits, which in many circumstances can be “bundled” with tax credits for other project attributes (such as affordable housing credits), is often the only way many green projects are realized.  It also accounts for the fact that today so much affordable housing is being built to green standards.  Jeff’s current Holy Grail is an affordable housing project which utilizes wind-based on-site renewable energy. If you have a project that fits this description and needs additional funding, send it his way!

The next two segments of the program shifted back to risk management – and how various insurance products and construction sureties might be used to help bridge some of the unique risk gaps encountered in green building. Keith McGlamery of The McGlamery Law Firm, PLLC described some newly available builder’s risk coverage offered by Zurich, Ace and others for green construction projects. These policy forms (which are often negotiable) offer enhanced coverage for losses resulting from construction delays for the acquisition of special equipment or materials, waste recycling, and loss of tax credits and other financial incentives.  And while no company is insuring that a building will achieve an identified standard or performance level, an AIG affiliate now offers to design professionals “green reputation insurance” which provides limited defense coverage should the architect or engineer be sued if a project fails to achieve a specified standard.  Keith then walked through a hypothetical (that would be the envy of many a law school professor) involving hurricane damage to a green roof.  Think about the doomsday scenarios that were predicted when Hurricane Irene hit Manhattan and all of the sudden none of this sounds much less “hypothetical”.  While expensive, coverage for these kinds of losses is available.  However, project owners must now make sure that their underlying policies cover special risks to green buildings, and obtain a separate “difference in conditions” or DIC policy to cover wind damage from a hurricane. Next up was Edward Lee of Whiteford Taylor Preston to discuss many of the misinformed expectations regarding the role of the construction surety in a green building project.  Ed emphasized that a surety company only guarantees performance by the obligated party (contractor).  It does not guarantee achievement of any performance or construction standard, such as LEED, and should not be relied upon for this purpose. Harking back to the earlier discussion regarding construction contracts and related risks, he reiterated that a surety’s obligations can rise no further than the contractor’s, again highlighting the importance of clearly allocating in the contract documents responsibility for activities related to LEED or similar certifications. Ed also echoed with some dismay the observations made on several occasions by Chris Cheatham in his Green Building Law Update regarding the D.C. Green Building Act, which still contains a performance bond requirement that simply is not offered in the market. This requirement, which amounts to a “forfeiture bond” (like when someone skips bail), will be effective in less than three months.

Up next was Stephen Del Percio of Arent Fox, blogger extraordinaire and publisher of The Green Real Estate Law Journal, who shared an insightful (and entertaining) analysis of greenwashing issues associated with green buildings. First was the news that we will apparently be waiting much longer for final promulgation of the long awaited and now twice-proposed revisions to FTC’s Green Guides.  Steve provided several useful examples of misleading (or potentially misleading) claims regarding the environmental or sustainability features of green buildings, including claims of LEED registration and certification status.  As you may know, it was green building performance claims that were front and center in the  recently decided case of Gifford v. United States Green Building Council.  And there is little doubt that there will be more where that came from.  One very positive outcome of that case (and related media reports) is the extraordinary emphasis now being placed on actual performance of LEED certified buildings. Many of the educational sessions at Greenbuild addressed topics related to green building performance measurement, as well as LEED certification and recertification.

Also making an appearance on behalf of the Canadian green building law community was John Haythorne of Fraser Milner Casgrain LLP.  John observed that, mainly as a result of a well-defined public-private partnership finance structure, the certification and performance risks which were discussed at great length by the U.S. based panelists are managed and allocated in a more straightforward manner in Canada.  In John’s recent experience, much greater emphasis is placed on long-term building lifecycle risk, especially those related to either product or materials failure associated with green building components, not unlike the claims being litigated in The Chesapeake Bay Foundation, Inc., et al. v. Weyerhauser Company, which is scheduled to go to trial next month. It was helpful to gain the Canadian perspective.  Maybe we could learn a thing or two from our very hospitable friends north of the border, eh?

Rounding out the presentation was Stuart Kaplow of Stuart Kaplow, P.A. and its consulting affiliate, Ajhon.  With due apologies to Letterman, Stuart presented his “Top 10” list of what green building lawyers can and should do to help move the industry forward.  In particular, he emphasized the “internationalization” of LEED and stressed the level of opportunity this has created for U.S. based legal professionals.  He also suggested that lawyers consider leveraging their talents through non-traditional business vehicles, such as consulting practices, noting that his business has experienced explosive growth by performing services through a “non-legal” affiliate.

So there you have it folks. While green building law has made great strides in the past few years, there is a sense that we are still only at the beginning, and many growing pains are yet to be endured.  Green building lawyers are presented with ongoing opportunities to shape and influence the direction of this industry, and perhaps do a little good along the way, a unique advantage not enjoyed by most of our colleagues.  I hope to see many more of you at Greenbuild 2012 in San Francisco next November.

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Green Jobs Forum Makes Greenbuild Debut

Greenbuild 2011, the tenth annual U.S. Green Building Council’s premiere educational event and product expo, got underway yesterday in Toronto.  I must say it’s impressive.  Attendance is nearly eight times that of the inaugural event in 2002, and the number of exhibitors has increased fourfold.  If anyone still thinks green building is a passing fad, they should get on a plane and come to Toronto. Corporate event sponsors from industry powerhouses such as Kohler, Hermann Miller and Steelcase and participating industry partners such as BOMA and the World Building Council for Sustainable Development reinforce the sense that this movement has truly come of age and is here to stay.

I’m not really the intrepid reporter type, but since I am here I thought I would share some of the highlights from the conference. I haven’t (yet) figured out how to be in several places at once, so I can share only about those sessions I attended.  For those of you interested in keeping up with other Greenbuild news, check out the posts under Twitter hashtag #GBNEXT .

This year marked the addition of a new Greenbuild program: The Green Jobs Forum.  Kimberly Lewis, VP of Conferences and Events for USGBC, received  well-deserved kudos from Rick Fedrizzi (Founder and Co-Chair of the USGBC) and others for launching this program and for keeping the issue of green jobs front and center.  Fedrizzi kicked off the opening session of the forum with a dual message.  First, he firmly rejected the current political paradigm that pits economic growth against environmental stewardship. Second, he implored forum attendees to have a “bias toward action”, and cited as an example former President Clinton who, according to Fedrizzi, was relentless in his drive for results over commitments at last month’s annual meeting of the Clinton Global Initiative.  Fedrizzi’s sentiments were echoed and expanded upon by Bracken Hendricks, Senior Fellow at the Center for American Progress, a Washington think tank which co-sponsored of the forum.  The opening session also featured presentations by Michael Thompson, Councillor of the City of Toronto, Ken Neumann, National Director of the United Steelworkers Canada, Robert Peck, Commissioner of the Public Buildings Service of the U.S. General Services Administration, and Dan Esty, Connecticut’s Commissioner of Energy and Environmental Protection and author of the book Green to Gold. Peck made an interesting observation about the “green jobs” label itself, and predicted that within five or six years the label will become less and less relevant as familiarity with sustainability and green building concepts become necessary core competencies across the entire real estate and construction  industries.  Esty highlighted Connecticut’s approach to financial support for development of sustainability technologies and green building, an approach that does not pick winners or losers, but creates opportunity for as many ideas as possible.  According to Esty, markets, not governments, are much better equipped for the task of determining winners.  To implement this approach, Connecticut recently launched the nation’s first Green Bank, which has been hailed as a true innovation in the sphere of public-private financial cooperation to support the development of green technologies and industries. Esty also laid down his own challenge to industry: focus on the problem to be solved, and don’t presuppose that existing solutions are the only answer. People want cold beer and hot showers – not fridges and hot water heaters. Now there’s a man with his priorities in order!

Following the opening session, there were several breakouts.  The first one that I attended was entitled “Moving Investment Capital – Commercial Real Estate Finance and the Green Economy”.  This terrific panel which was moderated by Ashok Gupta of the Natural Resources Defense Council, included Duane Desiderio, VP and Counsel of the Real Estate Roundtable, Bob Hinkle of Metrus Energy, Claire Broido Johnson, GM of Serious Energy Capital, and Maria Vargas, Deputy Director of the U.S. Department of Energy’s Office of Systems, Analyses and Planning.  Desiderio led off the panel with a discussion of current Roundtable initiatives to improve government support for green building by, among other things, expanding the availability of the current 179(d) tax deduction to include existing buildings, and by urging changes to the current DOE loan guarantee program (yes, the same one involved in the Solyndra debacle) to emphasize retrofits, not just new technologies.  Next, Johnson and Hinkle each described new models for financing energy efficiency improvements offered by their companies.  While the models have some similarities, they are both innovative entrants to the market previously monopolized by Energy Service Companies (ESCOs).  Both emphasized flexible, deal by deal underwriting which is “supplier agnostic”, distinct advantages to the ESCO model.  The goal of these product offerings is to solve the internal hurdles faced by key decision makers inside of any enterprise (most notably, capital commitments), and drive broader market penetration for these types of deals.  Finally, Director Vargas described DOE’s Better Buildings Challenge, and articulated the Department’s ambitious goal of improving energy efficiency in commercial buildings by 20% by the year 2020, generating over $40 billion in annual energy cost savings. During the Q+A, yours truly posed a question about driving energy efficiency retrofits into the mid and lower ends of the commercial real estate market.  All of the panelists expressed some dismay at the pace of progress in these market sectors, and mentioned some of the structural barriers with which we are all familiar, including non-aligned lease arrangements, an appraisal community ill-equipped to handle green building
valuation, and general market ignorance, malaise or both. However, there was clear recognition that these all are solvable problems, and that persistent outreach and education from the green building community will be key to eventual success in these market sectors.

The final breakout session I attended, entitled Understanding the Performance of the Green Building Economy, featured an equally impressive panel moderated by Chris Pyke of the USGBC, including Jonathan Flaherty of Tishman Speyer, Timothy Howell, Vice President of Sustainability for Ecological, Mike Zatz, Manager of USEPA’s Energy Star Portfolio Manager, and Bill Sisson, Director of Sustainability at United Technologies Research Center.  The focus of the panel was benchmarking of energy performance and transparency and disclosure of performance data, an issue I addressed in an earlier blog post in the context of the ASTM’s recently promulgated standard on building energy performance assessments. The discussion was lively and informative, and addressed many of the challenges posed by New York City’s ordinance that mandates disclosure of energy performance data for commercial buildings containing at least 50,000 gross square feet. Leasing was again discussed as a primary topic of concern, especially in the context of multi-tenant facilities.  But all panelists agreed that the pent up demand for energy efficiency modeling, benchmarking and improvement is both real and large, and will be the source of a great many new jobs.  As one of the panelists noted, if you have a child going off to college and thinking about engineering, this is a great career opportunity.

Although I learned much, my biggest takeaway from the green jobs forum is that the participants in the green building movement are not concerned solely with creating the next architectural wonder or “net zero” carbon emission buildings.  No, there are many smart and devoted people who care deeply about the employment and other challenges that we now face as a nation, and who are working diligently to unleash the full economic power of green building to help us face those challenges.  Soldier on, good people!

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Access to financing continues to challenge the green building movement. The Environmental Defense Fund provides an excellent discussion of these challenges in its recently released whitepaper entitled Show Me the Money – Energy Efficiency Financing Barriers and Opportunities.  Overcoming these challenges over the long term will require sustained commitment by the lending and appraisal communities, among others.  There are, however, three recent developments specifically addressed to the issue of green building and energy efficiency financing which signify some positive movement.

The first of these is the launch on May 31 of an energy efficiency improvement initiative coined “Green Refinance Plus”.  The program, jointly administered by FHA and Fannie Mae, aims to make available additional financing proceeds to owners of older multi-family affordable housing properties to support the installation of green systems and appliances.  The goal of the program is to reduce both energy use and greenhouse gas emissions and generate contemporaneous savings on utility bills. Read the rest of this entry »

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