The Green Corner: Changes to the LEED System

Posted on July 21, 2009 by Adam M. Goldstein

The U.S. Green Building Council, on April 27, 2009, implemented changes to Leadership in Energy and Environmental Design or LEED, the country’s most popular and recognizable green building rating system. The revised rating system, known as LEED 2009, contains several significant changes affecting developers who previously operated under the old system. LEED 2009 also features many positive improvements to the LEED rating system.

One of the most significant changes in attaining LEED certification now requires newly built, LEED certified buildings to submit electricity bills for at least one year following the building’s completion. The U.S. Green Building Council is attempting to move beyond certifying buildings based solely on their design and projected energy use and only certify buildings that demonstrate actual energy savings. However, buildings that have already been certified under the old system will continue to retain their existing LEED certification and will not have to reapply. 

Under the old system, buildings could attain a maximum of 69 possible points across 5 Classification Categories (i.e., Sustainable Sites, Water Efficiency, Energy and Atmosphere, Materials and Resources and Indoor Environmental Quality) and are ranked from “certified” to “platinum” based on the number of points earned. LEED 2009 enables developers to target a total of 110 possible points across 6 Classification Categories, including a new Classification Category known as Innovation in Design. 

The increase in the total number of possible points is based in part upon re-weighting of credits within the LEED Classification Categories to reward the most important green building goals, namely, energy efficiency and the reduction of carbon dioxide. For example, under the old system, the installation of a bike rack and the implementation of water efficient landscaping with a 50% reduction based on the average size and vegetation were each worth 1 point. Under LEED 2009, water efficient landscaping with a 50% reduction based on the average size and vegetation is now worth 2 points. 

LEED 2009 projects will also be able to earn “bonus points” for implementing green building strategies that address the most important environmental issues facing their region. A project can now be awarded as many as 4 extra points for achieving these regional environmental priorities. In Northern New Jersey, bonus points are awarded for the preservation and restoration of damaged habitats, limiting the harmful effects of stormwater and wastewater and reusing existing building structures. 

The green building process is highly technical and complicated, and simple misunderstandings or lack of green building experience can lead to missed opportunities or failure to achieve the desired rating altogether. Consultation with an experienced attorney will result in more informed decisions in navigating the green building process. 

Watch this blog for updates on green building and green technology.
 

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Construction Disputes: Arbitrate or Litigate?

Posted on March 3, 2009 by Robert S. Dowd, Jr.

A widely held assumption among project owners and construction contractors is that private arbitration is faster and more cost effective than litigation of a dispute in the courts. The inclusion of mandatory arbitration of disputes in all AIA construction contracts since their inception in 1888 was premised on this assumption. Unfortunately, as many owners and contractors have discovered, arbitration is rarely fast or inexpensive. In complex disputes arbitration often proves as costly and time consuming as resolution through the court system. In addition, many consider arbitration inferior to the court system in maximizing the chances of a just outcome. In response to widespread demand within the construction industry, the AIA revised its 2007 form construction contracts, deleting mandatory arbitration and permitting parties to choose arbitration or litigation through the courts.

Arbitration certainly has some distinct advantages over litigation. For example, there is a very limited right to appeal an arbitrator’s decision, thereby reducing the cost of potential appeals and expediting the process of obtaining an earlier binding decision. In addition, arbitration allows the parties to select a decision-maker with considerable expertise in construction matters, eliminating the need to “educate” a judge or jury about construction issues.

The arbitration process, however, has some significant drawbacks. Unlike most trials, arbitrations are not necessarily held on consecutive days until concluded and may be scheduled over several months, particularly when several parties are involved. This requires the parties and their respective attorneys and experts to spend additional time getting up to speed on the case before each arbitration session. Moreover, previously scheduled arbitration hearings are disregarded by most judges if a judge’s schedule for a trial or hearing requires the attendance of one of the attorneys involved in the arbitration. Many arbitrators also permit extensive document production, depositions and other methods of “discovery” similar to those available in the court system, increasing the cost and duration of the arbitration. The parties are responsible for paying the arbitrators their hourly rate for all time spent in the hearings and related study and communications, a potentially substantial cost especially where multiple arbitrators are mandated. Finally, the legal standards governing arbitration strongly favor an arbitrator’s consideration of all evidence offered by a party, even if it is developed during or after the arbitration hearings. This can result in a set of facts and issues that evolves during the course of an arbitration and extends its duration.

Participants in the construction process should carefully consider the pros and cons of arbitration or litigation of their construction disputes, rather then reflexively choosing arbitration. Consultation with an experienced construction attorney will result in an informed choice.

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