My husband, Bill, works for the Department of Defense as a civilian federal agent where his current day to day responsibilities involve protecting U.S. naval assets travelling throughout the Caribbean, Central and South America.  When the 7.0 earthquake rocked Haiti on January 12^th, he unpacked his bags for a scheduled trip to Panama and repacked them for the unexpected in Haiti.  Now, he has just returned after being there for almost a month.  Although his mission in Haiti wasn’t directly related to the urban and environmental issues that are the focus of this blog, some of the issues his team faced and the city he observed are definitely of interest to our readers.

Transportation Woes. Haiti’s transportation infrastructure was substandard to begin with.  When the earthquake hit, many bridges collapsed, the docks at the ports were heavily damaged and roads all over the city were blocked by buildings that were shook to rubble.  These obstacles increased the difficulty for aid to reach the Haitians in need.  Tasked with assessing ports, medical facilities, criminal threats, mass migration, allegations of orphan kidnappings, helicopter landing zones for aid distribution, and helping wherever they were needed, Bill’s team needed to move about steadily.  Initial travel proved to be difficult through the unfamiliar territory with a damaged road system.   At first, they hired locals more than eager  to earn some money to drive them around, navigate through the heavily damaged roads and translate from Creole and French to English when needed.   The people were friendly, gracious and excited to see help arrive.  Eventually, they were able to rent a car and find their own way around, as businesses began to reopen.

Haiti’s poor transportation system, washed out roads from mud slides of the past, and now earthquake damaged roads also caused horrible traffic.  It would take the team several hours to go only a few miles by car.  Gas scarcity and high prices also added to the complicated equation.  They were lucky to receive their daily ration of gas from the US military.

Given the high gas prices, normally five dollars per gallon, and extreme poverty that the Haitians live with, most Haitians primary mode of transportation is by foot.  Other common modes include bicycles and motorcycles.  Tap Taps are a popular way to get around.  These are independent trucks that operate as unregulated taxis.

Garbage Collection. Haiti lacks many of the basic city services that we take for granted.  Garbage and trash pile up on the side of the road.  When the pile gets big enough, they burn it.  The smell of burning plastic resonates through the air.  Port-au-Prince ranked 3^rd as the dirtiest city in the world in the 2007 Quality of Life Report produced by Mercer Human Resource Consulting.  The report ranks 215 cities throughout the world based on levels of air pollution, waste management, water potability, hospital services, medical supplies and the presence of infectious disease.

Water Pollution. The rivers that run through Haiti and the Caribbean waters that surround it are used for everything that you can imagine.  People wash their clothes in it, dump biological waste in it, bathe their children in it, and drink it.  The water’s edge along the coastline is covered in garbage.  The water running down the street gutter is brown.  Bill did not want to step in the gutter water for fear of what he would bring home on his shoes.  Just after that thought ran through his head, he saw a woman bend over and drink from it.

Deforestation. Most of Haiti’s countryside has been deforested and used to meet basic needs.  As was pointed out in past articles, the deforestation has led to a lack of wood to properly build buildings.  Without the proper support, the buildings in Port-au-Prince could not handle the magnitude of the earthquake, contributing to their collapse and the demise of over 200,000 people.

Recycled Clothing. Bill noted that a lot of their clothing looks like our old clothing.  Our clothing is apparently being recycled to them.  He saw a “Where’s the Beef” t-shirt and a “Frankie says Relax” t-shirt.  He even saw several people wearing my old alma maters t-shirts, Florida State and Georgia Tech.

Toys from Trash. Smiles were starting to come back to the children’s faces by the time Bill left.  With so little that they have, they still are children.  They still like to play.  They made kites out of trash bags, pull toys from empty water bottles and toy cars from old cans.

A World Community. On a brighter side, a tragedy like this does bring the world together.  Makeshift medical tents from teams of almost every country you can think of – Jordan, Canada, France, Germany, Jamaica, Dominican Republic, Brazil, Israel, Russia, the United States, and so on – were cropping up all over the country.  Bill met so many amazing people that put their home lives on hold, hopped on a plane without a formal plan in hand to come help.  They came as volunteers, packed their own food and brought supplies, because their hearts led them there.  I am proud of many of our own friends and neighbors that did just that.

“Haiti Normal” as it is called, is starting to return.  Cleanup efforts have begun.  Markets are reopening.  Bill bought local art from vendors on the street.  In so many ways, the Haitian people live much more sustainably than us.  But in so many ways, they are destroying the environment that surrounds them.  With all eyes on Haiti, we can learn a lesson or two from them, while trying to help reverse the horrible cycle of poverty and environmental destruction they are stuck in.  Now it’s your turn.  As part of the international community that is helping Haiti, what do you think are the key pieces to rebuilding this country?

As I thought about my good friend Eeyore, and my prior post (and borderline obsession with children’s characters (a totally different issue)), I realized that many can (and sometimes do) take my attitudes and penchant for baby steps as skepticism toward the whole idea of sustainable construction and its necessity.  Nothing could be farther from the truth.

I am committed in a very real way toward the idea of sustainability, I just feel that we are rushing headlong into the void without thought of potential consequences of our actions.  In the laudable zeal to make broad sweeping changes to governmental policy and building activity, I see the details being lost.  As I have posted before, here and elsewhere, I am at heart a risk management guy.  I see many issues through the same liability lens and feel that Murphy was an optimist.  For this reason (much to my lovely wife’s chagrin) I always look for the cloud in the silver lining (is that enough mangled cliches for one post?).

While I don’t think everyone in the “green” construction space should be thinking this way, we do need folks who are willing to look at issues as simple as a broken window or the potential for liability due to new technologies that are not time worn and tested as we move forward toward a more sustainable future.  This is not rocket science.  These are not high level policy issues.  We need to make sure that we consider the simple questions even if we don’t have the answers.

Why do I spread this wet blanket (okay I couldn’t resist one more bad metaphor)?  Because if we head into the future without consideration for these questions the whole sustainable enterprise could come crashing down.  One or two big products liability lawsuits or energy performance related lawsuits could chill the market for these buildings by driving contractors and suppliers from the space.  Without the companies that deliver the parts and build the buildings, all of the academic and policy decisions will be for naught.

In short, it is my commitment to a long term solution, and not skepticism that keeps me working to make sure that we understand the risks.  Without consideration of these very real and very critical (in my view as a construction attorney) issues, the market will not open and we will continue to live in the world of theory without meeting our potential and historical values through a long term and, yes, sustainable movement toward more energy efficient infrastructure.

Okay, that felt good, now back to working on contracts to deal with these issues.

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I am sitting here looking out at a wet, dark and windy day here in Richmond, VA.  In many ways I can relate to the clouds.  As an attorney I almost always feel like I am raining on the “sustainable building” parade.  On Build2Sustain conference calls, I always feel like I’m the one saying “whoa” we need to think about the liability.

As I’ve said at Musings before, Eeyore is one of my favorite characters from A. A. Milne.  Eeyore, you may remember, is the donkey on whom it’s always raining.  He is the loveable character that always feels like the sky is falling, but plugs along anyway.

I can relate.  I am firmly committed to sustainable building.  I think that the economic impact, combined with the moral imperative, make such a goal both worthy and required.  However, certain risks are inherent in any new use of technologies and any new mode of thinking, no matter how worthy.   Some of the issues that will need to be dealt with by contractors, architects, owners and, yes, lawyers, are the following:

• Insurance- the insurance industry is still catching up with energy related underwriting
• What standard of care applies due to a green building claim?
• Potential Trademark claims
• Longer time horizons and contractual or government requirements on energy goals

I sometimes feel like we are rushing past these issues without the careful thought that we need to give such risks in our (understandable) enthusiasm.  I tell clients to plan ahead, but it is human nature to be overtaken with excitement at a new venture and the vision of a better, cleaner, world.  However, until these issues are hammered out (hopefully without litigation to have judges tell us what to do), this march to a sustainable future will be a slow one.

The government can only do so much through mandate.  The private sector must be ready to move forward and pour money into sustainability.  Without some assurance and possibility to at least manage these risks, project owners and builders will be justifiably wary.  The sooner the risks are at least out in the open, if not resolved, the sooner the private sector will get fully behind sustainable construction and building management.

Until then, Eeyore and I will keep plugging through the rain.

The USGBC has imposed extended reporting requirements as part of its minimum program requirements for LEED. It appears the extended reporting already adopted may only be an initial step. We may see extended reporting requirements backed up by decertification; we may see on-going recertification as a basic part of LEED program structure.  I admit this is speculative, but we may be seeing a shift from LEED using energy modeling towards an actual performance model.

Given the overall goal of improved building performance implicit in LEED, these changes and speculated upon shifts may make sense technically. These changes, however, raise some significant questions regarding risk and responsibility. The ultimate impact on risk, and thus embedded costs, of these changes may vary dramatically from state to state because of each state’s underlying legal framework.  Placing these changes into the complex network of construction contracts, contractual allocations of risk, and shared responsibilities raises some interesting observations and questions:

• States whose limitations period runs based on “injury”, such as Virginia, may experience extended limitations triggers where building performance is alleged to be the failure; such results could be different for the various players depending on their roles
• In damage trigger states, courts may find that “injuries” were suffered far earlier than owners even suffered performance problems, so results in these states are difficult to predict and there could be big winners and losers
• States with discovery based limitations accrual, such as Maryland and the District of Columbia locally, will present cases with ever longer, potentially plausible, arguments regarding why the owner “reasonably did not know” of a problem for years after occupancy of the project
• The timing issues presented by extended performance questions mean that contractual agreements on statute of limitations and when they start to run should be focal points of contract negotiations; negotiations regarding extended warranties will be pivotal as well
• The growing use of LEED certification in various local zoning approvals means decertification may carry unintended consequences. If a project is decertified, is there a possibility that its occupancy permit is threatened?
• The potential for decertification, or a failure to participate in recertification if that becomes standard, may place commercial landlords at potential for extended risk of breaches of lease agreements depending on the LEED requirements imposed
• Lease agreements in turn need to be carefully worded so that all parties are on the same page as to exactly what is the yardstick and time frame for complying with LEED related terms

These are just a few of the wrinkles that come the mind when one places an overlay of extended performance obligations into the context of LEED.  We will keep a close watch on these developments moving forward.  We believe that continued movement on the extended performance axis by USGBC will have some serious economic impact on the financial aspects of LEED projects, who “wins” and who “loses” based on these changes, and where bottlenecks may develop on the economic risk side of the equation in reaction to extended performance obligations.