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THE FINE PRINT: LEGAL ISSUES IN GREEN BUILDING PROJECTS 271
would reduce operating costs and provide a healthier indoor environment. Budget
and scheduling concerns prevented the building from achieving Gold certification.
The developer sued the architect, claiming that the architect had guaranteed the cer-
tification level.
■ After a green roof was installed on a building, water infiltration resulted in signifi-
cant damage. Analysis concluded that a lack of structural stability caused the infil-
tration. The structural engineer claimed that no one had provided proper
information related to the green roof. The engineer’s liability had been limited con-
tractually to $50,000, an amount insufficient to repair the damage.
■ A law firm hired an architect to design a sustainable office that would receive favor-
able press. The architect received promotional materials from manufacturers of
green products and, based on these materials, incorporated the products into the
design of the office. The local press investigated the products and claimed that they
were not as sustainable as suggested by the promotional materials. The law firm
claimed its reputation was damaged and demanded that the architect remedy the
situation.
■ A county government required the recycling of construction materials. The archi-
tect on a project in the county agreed to provide construction observation services.
The contractor decided during construction that the recycling obligation was caus-
ing delays and that prices for recycled material had declined. It began dumping con-
struction waste in another state. When the county took action against the project’s
owner, the owner sued the architect for failure to properly observe construction.
Other claims have involved patent infringement, consumer protection laws,
breaches of confidentiality, and mold issues. The range of possible claims from any
building project is nearly unlimited, and developers always need to consider how to
protect themselves. How are these considerations different for a green building
project?
1. Nature of the Obligation
When a developer enters into a contract with a design or construction professional, the
contract typically does not require the professional to perform its obligations perfectly.
Rather, the professional usually agrees perform its obligations in a manner consistent
with the degree care ordinarily exercised by other members of the profession in simi-
lar circumstances. This is called the “standard of care.”
In a green building project, the standard of care may not be adequate to protect the
developer’s interests. Two of the above examples describe instances where an archi-
tect recommended green products that either caused construction delays or were not
as green as advertised. If the architects in those cases had agreed to use only the degree
of care ordinarily exercised by other architects in similar circumstances, they might
not have been expected to thoroughly investigate the availability or environmental
attributes of the products in question.
If additional risks arise out of the fact that a developer is constructing a green build-
ing, that developer may need to consider requiring guarantees or other assurances