I recently had the opportunity to sit in on an Alcholics Anonymous meeting. Limited Disclosure: Who I was in the meeting for is private, hence the ‘anonymous’ but I will share that I am not in recovery, just an interested, supportive third party.

One lesson from the meeting really stuck in my mind. It’s a simple concept.

“Progress, Not Perfection”

Put simply, the idea is that a recovering alcoholic is going to falter on the road to sobriety. What AA encourages is continual effort toward becoming sober for life, because as they also acknowledge being an alcoholic is something you are not something you “have.” The concept encourages continual improvement, instead of a light-switch, where one turns off their desire for alcohol and never turns it back on.

I left the meeting and that simple phrase kept turning around and around. I wonder if the green movement in total, and the green building movement specifically, could you a dose of this thinking. I often read on professional boards and blogs about the dilemma of asking clients to take sustainability measures when they are not perfect solutions.

“How can we ask them to switch to fluorescent when there is Mercury?”
“How can we ask them to switch to solar, when the waste stream isn’t managed?”
“How can we recommend LEED accreditation when, the NY Times posts articles doubting LEED’s effectiveness?”

It’s not that each of these questions don’t have merit, they do. Solving these kinds of problems through the development of best practices is something Build2Sustain is committed to. That said, the perfect cannot continually be enemy of the good. Apply the “progress, not perfection” mantra and we’ll see forward movement when it comes to increasing efficiency and therefore the sustainability of the built environment.

Does that make a perfect a building stock? No, of course not. To create one would be the life’s work of every design/build professional, but it’s a start.

Progress, Not Perfection.

Let’s get to work. 

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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by James Bedell

Photo, Flickr

As one of the founders and leaders of Build2Sustain I am constantly trying to advocate for the business case for green building renovation. I do this for two reasons, the first, because I believe in it. Efficiency is at the heart of good capitalism and we need our built spaces to be more efficient to compete. I also make the argument because, frankly, I think it’s the one people outside of the “green” movement will listen to. It’s hard sometimes to make the argument about stopping climate change; it’s easier to defend someone’s wallet. But I want to make something clear, there is a moral imperative for every building to be a green building. Here’s the bottom line: there are a limited number of resources on this planet and as the population grows we know that we’ll need to be smarter about how we use those resources.

It’s so easy to look at SUVs and make them the target of our environmental ire. It also gives people a simple point of attack. Celebrities drop their Hummers and get Teslas and all the sudden everything is right with the world. I wonder if their home is as efficient as their car? The buildings we live and work in are responsible for half of the green house gas emissions in the world. They are also responsible for roughly the same percentage of our energy usage. We focus intently on transportation because we feel like we can engineer our way to a solution and maybe we can, but our houses, our offices, and our malls are just as much to blame and represent a lot more work.

Our buildings can be healthier places that disturb the natural environment less and actually contribute energy to the grid instead of only pull from it. We can actually remake our building stock into a net positive for the planet if we have the will. Where do we find that will? Imagine a tomorrow where our kids don’t pay electric bills. Where our water supply is constantly recycled. Where our cars are powered by electricity pulled from our homes. A world where we don’t have to worry about air quality because of burning coal to power our offices. Imagine built spaces that make us healthier. That’s the future we can provide for our children, if we only work for it. Don’t we owe that to them?

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.