It’s a beautiful, warm spring day here in Richmond, VA. The sprinklers were going in neighborhood yards as I left for work this morning and the clouds are moving lightly on the breeze. With the sun shining and the birds chirping outside of my office window, even I and my old pal Eeyore could smile and see some optimism for the future.
Activity abounds in the sustainable building world. California is implementing the first state wide “green” building code and, according to my friend Imad Naffa (@imadnaffa on Twitter), that state will be pressing builders and developers to build in a sustainable manner. Governmental units, both small and large, are seeking to add zoning or other incentives to build in a sustainable manner. More and more developers are seeking LEED certification (though this certification is sometimes subject to challenge). All of these signs point toward the desire for a more energy efficient and responsible built environment.
The dad in me wants this badly and quickly. Better air quality, less energy use, and a more predictable weather pattern (to the extent that weather is predictable) can only lead to a better future for my kids. However (and this is where you should get the “here he goes again” look on your face as you read this), the sad little donkey on my other shoulder is always reminding me to step back and take a quick look at the big picture.
The enthusiasm for the sustainable construction paradigm is laudable but should not overtake some sensible discussion of risks and costs. Questions (several of which I have discussed at Construction Law Musings) that should be considered during the policy phase of this enterprise are as follows:
- What are the costs to a private developer of forced “green” building that cannot be tailored to a particular project? Will these costs preclude certain development?
- Can the insurance industry catch up with the regulators? Without proper insurance coverage, contractors may not be able to justify construction.
- How does the use of LEED (a laudable private rating system that can change without the usual legislative process) in certain zoning and building requirements create risks for the owners, architects and builders?
- What about simple time horizon risks?
None of these issues are insurmountable and I remain optimistic that we can deal with them in a rational fashion. While I don’t know the answers to these questions from a legal risk management standpoint, as a construction attorney and father, I feel that I would not be promoting a permanent change without bringing the questions to light so that they don’t surprise us and kill this hard fought momentum. Once many of these questions are considered carefully, we may decide that some are simply too small to deal with, while others are highly relevant and should be dealt with before the courts make the decisions for us. Once the questions are in the open and some answer is reached, a more permanent foundation for a brighter, more energy efficient future will arise.
Let me close by saying that because of folks like Yahya Henry and the other contributors here at Aribra, and the many great friends I have met along the way, Eeyore is getting quieter and quieter as time goes on.
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