Taking The “LEED” On Law And The Environment
Handful of state attorneys certified in eco-friendly design
By CHRISTIAN NOLAN
Attorney Christopher J. Novak thinks that the greener the state’s building codes get, the more there becomes a need for lawyers to understand the changes to better advise their clients.
Who is liable when a toxic paint used on a building prevents the project developer from getting the tax credit they banked on? And what if an architect’s professional liability insurer refuses to cover the damages?
Questions like those prompted Novak, an attorney at Halloran & Sage in Hartford, to become certified as a Leadership in Energy and Environmental Design Accredited Professional (LEED AP). He is one of only a handful statewide who also is a lawyer.
The LEED Green Building Rating System is the most widely accepted and used green development rating system. It was developed by the United States Green Building Council (USGBC), a nonprofit organization.
The USGBC created the rating system to provide independent third party verification that a “green” development delivers high performance energy efficiency in an environmentally safe manner.
More than 100 state and local governments, including Connecticut, have enacted green building laws that, to different degrees, incorporate LEED Green Building Rating Systems.
“If the market is driving this and the law is starting to mandate LEED, that’s when I realized that I needed to get into this,” said Novak.
A Connecticut general statute enacted Jan. 1 requires, with some exceptions, that buildings constructed by the state attain a level of LEED certification or its equivalent. Novak said there is an effort to implement these same green initiatives into new building codes.
“Evidence is growing that LEED certified buildings are achieving higher rents, higher occupancy rates and higher sale prices,” said Novak. “In effect, the market is making LEED certified buildings the new de facto standard for new building construction.”
Novak said states have begun to “incentivize” or mandate construction in accordance with LEED. As such, Novak said, it would be only natural for legal disputes to arise among land owners, project developers, contractors, and design professionals.
Novak explained that if a project does not attain a desired certification level from the USGBC, project developers could forfeit a tax credit they were counting on or even lose tenants. In turn, the project developer would likely try holding the contractors or design professionals responsible for the failure to achieve the desired level of LEED certification and any damages associated with such failure.
For this reason, Novak said clients involved in real estate developments should address these LEED-related liability issues in their contracts.
“Construction and design contracts should address who is responsible for fulfilling LEED related obligations,” said Novak. “What happens if a project doesn’t obtain LEED certification, what type and amount of damages would accrue, and who is liable for those damages and to what extent?”
Novak also pointed out that as building codes get greener, town planning and zoning ordinances will have to adjust to the changes. Just one more way lawyers will become involved.
At The Forefront
Robert Sitkowski, an attorney at Robinson & Cole who was formerly a practicing architect, said it was “a natural” that he seek LEED AP certification from the Green Building Certification Institute (GBCI). After all, a large majority of LEED AP’s nationwide are architects.
Sitkowski works in Robinson & Cole’s Sustainability and Climate Change Practice Group. The attorneys handle cases in environmental law, land use, utilities, real estate and construction.
“There’s a lot of energy behind this,” Sitkowski said of green building initiatives. “It’s at the forefront now of the development industry.”
To attain LEED AP status, Sitkowski and Novak took a two-and-a-half hour long, 80-question multiple choice exam after participating in a prep course. The exam tests every aspect of the USGBC’s nine rating systems. The nine rating systems include interior air quality, energy usage, water efficiency and even greener materials used in the construction.
A GBCI spokesman reports that there are only four lawyers out of 674 LEED APs statewide, but not all of them attained such status to gain an edge in competing for clients.
Sara Bronin, a professor at the University of Connecticut’s School of Law, also sought the LEED AP certification. She said green building issues are an area of her research, and environmental law is one of the law school’s four “areas of excellence.”
The fourth certified Connecticut attorney is Frank Sacramone Jr. of Branford.
“For me it was more of a signaling mechanism to show you’re interested in sustainable issues,” said Bronin, who also is an architect.
Bronin has put her training to practice, working as the lead attorney on Connecticut’s largest green building project to date – 360 State Street in New Haven.
A 400 kilowatt fuel cell, a first for a residential building in the state, will produce clean, renewable power for the building. The building itself features recycled construction materials, and all appliances are high-efficiency Energy Star rated units. There also are “ultra high performance” insulated windows and elevators that manage to recapture their own energy.
And no need for a car if you live there. There’s indoor bicycle storage and shuttles and buses stopping at the door with a reduced fare for residents.
“Green building is such a cutting edge legal area… it has provided synergies that wouldn’t necessarily get in the traditional areas of law,” said Bronin.
Novak agreed.
“It’s a fascinating area, a new area and an area in flux, which is a good thing for attorneys.”•
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