"Green buildings can be a beautiful thing if people don't oversell their wares," says Murano. "If you oversell and people start realizing there are quantifiable damages you can expect legal action." Murano has some solid reasons for seeing lawsuits in his crystal ball.
He points to a shift between the old construction process and the new construction process. In the old process, builders had to promise two things: to finish on time and to finish on budget. "They finished the project, did the walk through, threw the client the maintenance operation manual, tossed them the keys and the builder was gone," says Murano.
However, with the new emphasis on energy conservation and sustainability, the old process has gone out the window and has been replaced with a set of guarantees related to the ongoing performance of the building. "It means you are not just constructing the building as the drawings say, but the designer is providing some kind of assurance that this building will have certain energy savings, or water conservation advantages that the client can bank on," says Murano.
More and more state and federal government regulations demand that buildings be built to certain standards. At the same time, there are developers that believe going green will add value to their projects and even homeowners who want homes with energy effective designs.
However, if the building does not measure up there is a list of performance promises that will come back to haunt the project builders, architects and engineers. "They are contracted to build the project in such a way that it would save money, and if those expectations are missed then the owner can go back after the promise is made and broken and collect," says Murano. "It is completely quantifiable."
"That is a major change," says Murano. "You have a quantifiable damage – and a building that on its own must perform. In a lawsuit the damages would not be just that the builder didn't deliver on time or spend the money they were contracted to spend—there is another intrinsic damage that is easily proven."
There is yet another change in the whole process when projects go green. It usually means that there several hands on the tiller. There is an architect, there are contractors and construction companies and engineers, all of whom must work together to create a successful sustainable building project. Any or all of those groups that are part of the process could be held accountable if there is a problem. "They are all part of the process and as a result could be part of the problem with promises made or promises broken," adds Murano.
Murano worked with architectural and engineering firms for 15 years. He has been involved in project management from all angles and has a running understanding of the construction business. Murano is believed to be the first and only LEED certified (Leadership and Energy Environmental Design) lawyer in the state of Missouri.
As more lawyers take the LEED certification program, Murano expects that will also result in more failed green building projects ending up in court.
As a lawyer for plaintiffs, Murano's tactic would look at the builder's brochures, mission statements, the company's website—anything where the builder made claims about the company's ability to construct high efficiency buildings. "What promises do they make? Do they say, 'We are the greenest thing in town. We will make you realize your energy savings and energy efficiency.'"
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There are not a lot of those kinds of suits now, but Murano says that "in the future, you are going to see a number of these coming to light."
Donald Murano is a principal in the law firm of Guinness,Buehler & Murano in St. Louis, Missouri. He holds a Florica Class A General Contractor's license and is a LEED NC (New Construction) Professional accredited by the United States Green Building Council (USGBC). He represents clients on a state and national level.