attorney's role in leed construction
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ALI-ABA Audio Seminar
Attorney's Role in LEED Construction
May 29, 2009
Telephone Seminar/Audio Webcast
TABLE OF CONTENTS
Page
PROGRAM SCHEDULE ix
FACULTY PARTICIPANTS xi
FACULTY BIOGRAPHIES xiii
STUDY MATERIALS
1. Attorney’s Role in LEED Construction--PowerPoint Presentation
by Shari Shapiro and Chris Cheatham
1
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PROGRAM SCHEDULE
for May 29, 2009
Program Schedule Eastern Central Mountain Pacific/Arizona Alaska Hawaii
NationalTeleseminar/Webcast 12:30 p.m. 11:30 a.m. 10:30 a.m. 9:30 a.m. 8:30 a.m. 6:30 a.m.
Adjournment 1:30 p.m. 12:30 p.m. 11:30 a.m. 10:30 a.m. 9:30 a.m. 7:30 a.m.
Scope and Purpose: Green design and construction and the potential for inclusion
of “LEED” certification requirements present opportunities for clients of construction
and real estate attorneys. Counsel must know and outline the best practices for
incorporating these requirements into construction contracts and obtaining LEED
certification. This teleconference and live audio webcast will provide an overview of
LEED certification for green buildings and offer practical advice for negotiating green
construction projects. Our speakers will discuss the current status of the
requirements and the attorney’s role as well as look to what may be next as interest
in LEED certification increases.
Topics include:
• What is the LEED rating system and what other standards exist?• Will one system be the preferred standard?
• What are the risks to Green Building and how do I manage these risks for my
clients?
• What are the benefits to LEED certification?• What does the future hold for Green Building?
• What legal issues are unique to Green Building and LEED certification? Faculty
Shari Shapiro, Obermayer, Rebmann, Maxwell & Hippel LLP, Philadelphia, PA
Chris Cheatham, Watt, Tieder, Hoffar & Fitzgerald, LLP, Washington, D.C.
Program (All Times EDT)
12:30 p.m. Attorney’s Role in LEED Construction – panel discussion
Questions and Answers 1:30 p.m. Adjournment
* Questions and Answers will be integrated into the program. Questions are welcomein advance of and during the seminar by e-mail to [email protected] (Subjectline: Faculty question).
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Total 60-minute hours of instruction: 1.0; Total 50-minute hours: 1.2
Suggested Prerequisite: Limited experience in legal practice in subject matter.
Educational Objective: Development of proficiency in performance of intricate and
complex legal tasks within a narrow area, provision of information on recent legaldevelopments; maintenance of professional competence as a practitioner.
Level of Instruction: Intermediate
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ALI-ABA Audio Seminar
Attorney's Role in LEED Construction
May 29, 2009
Telephone Seminar/Audio Webcast
PLANNING CHAIR
Shari Shapiro
Obermayer Rebmann Maxwell & Hippel LLP
1617 John F Kennedy Blvd
Philadelphia, PA 19103-1821
FACULTY
Chris CheathamWatt Tieder Hoffar & Fitzgerald, LLP
8405 Greensboro Dr Ste 100
Mc Lean, VA 22102-5106
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ALI-ABA Telephone and Audio-Only Webcast
Attorney’s Role in LEED Construction
TSPX06/TWPX06
Faculty Biographies
Speakers
Shari Shapiro
Obermayer, Rebmann, Maxwell & Hippel LLP
Philadelphia, Pennsylvania
Shari Shapiro is an associate with Obermayer Rebmann Maxwell & Hippel LLP. She is a
member of the Environmental Department.
Ms. Shapiro is a LEED Accredited Professional. Ms. Shapiro focuses her practice on
green building law, which includes sustainable project financing, regulatory drafting,
land use approvals, contracts, and conflict resolution. Ms. Shapiro is the Sustainability
Coordinator for Obermayer’s Sustainability Initiative.
Ms. Shapiro maintains a blog on legal issues related to Green Building, available at
www.greenbuildinglawblog.com.
Ms. Shapiro is the Co-Chair of the ABA State and Local Government Section
Subcommittee on Land Use/Environmental Law, and is on the Board of Directors of the
Delaware Valley Green Building Council.
Ms. Shapiro recently coordinated a seminar entitled “Getting Green Done…Right,”
exploring the nuts and bolts of environmentally sustainable and economically viable
development projects. Ms. Shapiro made a presentation on “Local Regulation of Green
Building Projects” at the seminar.
Ms. Shapiro earned her Juris Doctorate degree from the University of Pennsylvania
where she received the Milton C. Sharp Award for Best Grades/Best Research in Urban
Renewal or Land Use Planning. While attending the University of Pennsylvania, she
obtained a Certificate in Business and Public Policy from the Wharton School of
Business.
Ms. Shapiro received her Bachelor of Arts Degree in Development Studies and Modern
British History from Brown University.
Ms. Shapiro is admitted to practice in the states of Pennsylvania and New Jersey.
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Chris Cheatham
Watt, Tieder, Hoffar & Fitzgerald, LLP
Washington, D.C.
Chris focuses his practice on suretyship, construction, government contracts, and
commercial contract law. He also holds a Leadership in Energy and EnvironmentalDesign® Accredited Professional (LEED AP) designation. The LEED rating system is
the nationally recognized benchmark for design, construction and operation of high-
performance green buildings. As a LEED AP, Chris is part of a select group of attorneys
nationwide who have recognized the significance of “green” building trends and he is the
first Virginia practicing attorney to attain the designation. Chris possesses an
understanding of green building strategies to assist clients through the LEED certification
process, from startup to final verification of a project’s green measures, as well as
navigating clients through the evolving green building regulatory requirements.
Chris has assisted clients in disputes arising from a variety of construction projects,
including locks and dams, complex levee systems, housing complexes, airports andresidential homes. In addition to his litigation experience, Chris has drafted and
negotiated contract documents, provided advice in contract administration, and prepared
claims on behalf of sureties and contractors.
Memberships and Affiliations
• American Bar Association
o Forum on the Construction Industry
o Tort Trial & Insurance Practice Section
o Fidelity & Surety Law Committee
• AGC of Metropolitan Washington D.C.
o Young Contractors Forum
• Virginia Bar Association
o Construction and Public Contracts Law Section
o Civil Litigation Section
o Young Lawyers Division
o DC Habitat for Humanity
Environmental Community
• USGBC National Capital Region Chapter
Publications and Presentations
• Author, "White Paper: Virginia's Green Building Battle," U.S. Green Building
Council National Captial Regional Chapter, Website Resources, April 2008.
• Author, "Virginia's Green Building Battle," Virginia State Bar, Construction Law
and Public Contracts News, Spring 2008.
• Author, "Does Your Arbitration Agreement Have Holes Making Rulings Less
than Final?" Watt, Tieder, Hoffar & Fitzgerald Newsletter , Summer 2007.
• Contributor, American Bar Association Forum on the Construction Industry,
Construction Law Glossary, 2008.
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• Author, "Does Your Arbitration Agreement Have Holes Making Rulings Less
than Final?" Watt, Tieder, Hoffar & Fitzgerald Newsletter , Summer 2007.
• Contributor, Construction Law Glossary, American Bar Association Forum on the
Construction Industry, 2008.
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Shari Shap
iro, LEED A
P, Esq.
Chris Cheatham, LEED AP, Esq.
Attorne
y’s Role in
L
EED C
onstruction
M
ay 29, 2009
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Wha
t is “green”building
?
•A g
reen building, also known as a
sustainable building, is a stru
cture that is
des
igned, built, renovated, operated, or
reused in an eco
logical and r
esource-
efficient manner. Green buildings are
des
igned to mee
t certain objectives such as
pro
tecting occupant health; improving
employee produ
ctivity; using energy, water,
and
other resources more efficiently; and
reducing the overall impact to the
env
ironment.
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Why build green
the green reason
•The
built environm
ent has a profound impact on
our natural environment, econom
y, health, and
productivity.
•In the United States alone, buildings account for:
•7
2% of electricity consumption,
•3
9% of energy use,
•3
8% of all carbon dioxide (CO
2) emissions,
•4
0% of raw materials use,
•3
0% of waste output (136 million tons
annually), and
•1
4% of potable water consump
tion.
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Why build greenth
e OTHER
gree
n reason
•
The overall green building market (both non-residential and residential)
is likely
to more than double from today’s $36-49 billionto $96-140
billion
by 2013 (Source: McGraw Hill Construction (2009). G
reen
Outlook 2009: Trends Driving Change.)
•
The value of green building construction is projected to increa
se to $60
billion by 2010(Source: McGraw-Hill Construction (2008). K
ey
Trends in the European and U.S. Construction Marketplace:
SmartM
arketReport.)
•
The construction market accounts for 13.4%
of the $13.2 trillion U.S.
GDP(S
ource: Departmen
t of Commerce (2008). Annual Valu
e of
Constru
ction Put in Place.)
•
The gre
en building products market is proje
cted to be worth $30-$40
billion annually by 2010
(Source: Green Building Alliance (2
006).
Green B
uilding Products: Positioning South
western Pennsylvania as
the U.S. Manufacturing C
enter.)
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Un
ited States Green
Bu
ilding Council
(USGBC)
Un
ited Stat
es Green
Building Co
uncil
(USGBC)
•
Founded in 1993
•
Non-pro
fit trade
org
•
Develop
s LEED
•
USGBC
Chapters
•
Founded
in 1993
•
Non-pro
fit trade
org
•
Develops LEED
•
USGBC Chapters
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Leadership
in Energy
and Enviro
nmental
De
sign (LE
ED)
Leadership
in Energy
and Environmental
Design (LE
ED)
•
Established in 2000
•
Green building r
ating system
•
Develop
ed by US
GBC
•
Established in 2000
•
Green building rating sys
tem
•
Developed by US
GBC
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Other Ra
ting Sy
stems
•Gre
en Globes
•Ene
rgy Star
•NA
HB
•Earthcraft
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Ben
efits of Green Building
Certification
•Verification
•Ma
rketing
•Regulation
•Incentives
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Green Building Risks
•Parties and Risk
s
•Owner –choose green building approa
ch
•Architect –in
corporate green design
•Contractor –build to plans and
specifications
•Sub-contractors –same as
contractor
•Sureties –bond the green contractor
•LEED consultant –???
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Lega
l Issues: LEEDigatio
n
•Sha
w Developm
ent v. Southe
rn Builders
•The
Contract:
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Lega
l Issues: LEEDigatio
n
•Sha
w Developm
ent v. Southe
rn Builders
•Damages
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Legal Issues: Defects
•“Don’t Let Gree
n Design Cause Red Ink”
•Frank Musica, Victor O. S
chinnerer an
d
Co.
•AIA Convention –2007
•21 green building claims
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Legal Issues: Defects
•Ene
rgy Use Abo
ve Promise
“Architects and consulting engineers signed
contract that stated
that projects w
ould ‘reduce
operating costs by 50 percent’over schools of
similar size. Energy usage is com
parable to other
schools recently designed and constructed. Scho
ol
system is publicly embarrassed, d
isappointed an
d
blam
ed as being ‘h
oodwinked’by architect and
engineers. School system brings claim.”
“D
on’t Let Green Design Cause Red Ink,”Frank Musica
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Legal Issues: Defects
•Guarantee of Indoor Air Qua
lity
“Lu
red by the promise of ‘he
althier and
more productive
occupants’basic to LEED
pub
licity, tenant rents space in Silver
certified building. At end of first year,
tenant’s records indicated greater use of
sick
leave. . . . T
enant deman
ds rent rebate
from project bas
ed on promise of a
healthful workplace and tena
nt sues
architect.”
“D
on’t Let Green Design Cause Red Ink,”Frank Musica
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Leg
al Issues: Reg
ulation
•Gre
en practices are being incorporated into state
and
local zoning a
nd building codes and
ordinances
•1
4 percent of U.S. cities with p
opulations of
m
ore than 50,00
0 have green b
uilding programs
•T
he number of counties with g
reen building
p
rograms has grown by nearly 400 percent since
2
003
•Fed
eral statutes require federal agencies to proc
ure
recycled material, reduce energy consumption a
nd
prevent pollution.
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Ty
pes of G
reen Building
Reg
ulations
•Command and Control Type Reg
ulations
•July 17, 2008
California adopts green build
ing
code for all new
construction s
tatewide
•2
007Boston, Washington, S
an Francisco, L
os
A
ngeles mandate green building requirements
for new construction above a s
pecified square
footage
•Financial Incentives
•2
008Portland
enacts “feebate”structure
•Non-Financial Inc
entives
•E
xpedited perm
itting; increase
d FAR, buildin
g
h
eight or density for green buildings
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AHRI v. City
of Albuquerque
•October 3, 2008, C
hief District C
ourt Judge Ma
rtha
Vazquez granted the preliminary injunction, and laid
out her opinion that the Albuquerque Code was indeed
preempted.
•“There is no doubt that Congress intended to
p
reempt state re
gulation of the energy efficiency of
certain building appliances in order to have
u
niform, express, national energy efficiency
standards.”
•“At the time the
Code was drafted the Green
B
uilding Manag
er, by his own admission, wa
s
u
naware of fede
ral statutes governing the ene
rgy
efficiency of HV
AC products and water heaters and
the City attorneys who reviewed the Code did not
raise the preemption issue.”
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Other Regulatory Pitfalls
•Sta
te preemption
•Rational relationship require
ment
•Void for vaguen
ess
•Confiscatory takings/Reason
able Fees
•Improper delegation of authority
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The
Future
•
The Stimulus a
nd Green Bu
ilding: Funding
•
General Ser
vices Administration
$4.5 billion
•
Department of Defense
$3.6 billion
•
States
$3.1 billion a
nd $3.2 billion
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The
Future
•
The Stimulus a
nd Green Bu
ilding: Risks
•
LEED Certifica
tion Guarante
es
-www.fedbizopps.g
ov
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Cap & Trad
e
•Wh
at is Cap and Trade?
•How might it effect buildings?
•Wa
xman-Markey Bill
28