Few people noticed it, but July 16, 2012 may turn out to be a symbolically significant day in the history of engineering and green construction.
That day had been set as a deadline for submissions of scholarly papers by the editors of the Journal of Legal Affairs and Dispute Resolution, which is published by the American Society of Civil Engineers. It was the deadline day set for papers for a special issue on green projects and sustainability.
Papers on legal ramifications from green construction, from anywhere in the world. On contract management, dispute resolution, practice and professional development, enforcement of codes and regulations or analysis of legal cases.
Papers about structures that fail to meet the targeted carbon dioxide footprint, for example.
Or which disappoint the owner's overly high expectations.
Or the new international green building codes being adopted in Latin America. Or green insurance. Or green provisions in commercial leases in France.
But when the July 16 deadline arrived, the disputes journal editors, who are engineering professors in New Zealand and Hong Kong, found themselves with only one paper in their hands.
And they decided to extend the deadline for papers to be submitted until September.
So my question is, "Where are the green lawsuits and disputes?"
We know about the Maryland lawsuit over the LEED rating and the tax abatement or incentive. And we've heard about the failed challenge to the U.S. Green Buildings Council. Some of the lawsuits classed as green aren't really green lawsuits but garden variety defect and damage claims.
And we've seen numerous worries about the elevating standard of care for engineers.
But since we have heard so much about risks involved for engineers, why aren’t court calendars crowded with green lawsuits? Why haven’t the arbitrators' schedules filled up? Or mediators busied themselves in green mediations?
Attorney Peter S. Britell, who wrote a book on U.S. sustainability law and watches the international situation, says that either the recession has put adoption in slow motion or what we once thought was a big deal has been priced into projects. He notes that sustainability requirements are being embedded in more codes and regulations all the time.
(Note that Tishman International, the real estate company, put out a press release last October about how it has sponsored the first sustainability conference of the Bulgarian Green Building Council. I never knew there was a Bulgarian Green Building Council.)
Britell also wonders when the time comes, will a mortgage lender with a "green" requirement in its agreement default a borrower if a structure loses its LEED rating?
All good points.
Like Britell, engineers and insurers I spoke with wonder when the green lawsuit dog will start barking.
My fear is that the legal risks of green projects have been exaggerated by attorneys, who, eager to help clients facing rampant unconscionable risk-shifting by owners, try to parlay those fears into limitations on the green design agenda
If you believe in the pressing threat of climate-change, as I do, the much-mentioned evolving designers' standard of care, instead of something to be feared, is something to wish for.
So far green design and sustainable construction has enjoyed a comparative honeymoon from disputes and legal trouble.