Despite the dire forecasts I’ve heard from a couple of presentations and seminars I’ve heard earlier this year, there hasn’t been much in the way of litigation over LEED and green building.  There is a case of a condo development (I think) on the east coast where the contractor had other problems, and then some dispute surrounding the LEED certification of the project led to a lawsuit.  (I’m going from memory here, so I may not have this correct.  I’ll have some better resources below.)  But, that was the single example for ‘LEEDigation’ for a while.

Having been to these law and insurance seminars, and hearing all kinds of warnings and dire predictions about the forthcoming torrent of green building litigation that is just around the corner, I haven’t seen all that much

Now, there’s a new case coming out where the Gold-level certification of a high school (Northland Pines High School in Eagle River, Wisconsin which was awarded Gold under LEED NC 2.1) was challenged. Not only was it challenged (in December of 2008), but, after the certification was upheld by the USGBC, it is now being tried in the press, with the appellants now posting copies of their appeal and documentation for everyone to review.

My question upon hearing about this is to wonder about the motivation of the individuals behind this. Why are they so adamant about taking away the certification this building was awarded?

A copy of the original appeal has been posted, and I will admit to not having read the whole thing. However, for me, this is the telling line, from the front page:

The engineering professionals preparing this appeal were originally retained to review the design for non-compliance with LEED prerequisites due to litigation threats made by the design team against the appellants for publicly expressing their concerns for the design provided.

I think it’s less an issue of LEED certification being disputed than that LEED is being used as proxy for a wider dispute. Of course, that’s not a new thing in law.

Does stripping this building of its LEED Gold status do anything to advance the cause of green building? I don’t see what this is going to accomplish, other than boosting the egos of one set of litigants or the other.

A couple writers who I follow semi regularly on the topic of green building law are:

Stephen Del Percio – Green Real Estate Law Journal
Chris Cheatham – Green Building Law Update

If you want to read more about this kind of thing, I think these guys are both good sources to follow. Both of them have made recent posts about this decertification issue, if you want to find out more and get their takes on the matter.

I would hope that it would not become an issue on any project I am ever involved in. I think a lot of this particular case comes down to mishandling the expectations and the relationship with the various parties involved. But I also find it useful to keep up on what the experts have to say about this, even if I think the predictions are overstated, because if we stay aware of the nasty alternatives that can come up, we’ll work to try to avoid that kind of confrontation in the first place.