TEN NEW YEAR’S RESOLUTIONS FOR CONTRACTORS-2021

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   As I sit down to write my annual list of resolutions for contractors, I am amazed at how much things changed in 2020. Construction was going well and then, in March 2020, COVID-19 hit. At first, we thought it was going to be a disaster for the construction industry. States, cities and towns shut down projects and many applied for PPP loans. Then, something amazing happened. Construction was considered an essential service and everyone was back to work.  That said, the work world changed: companies were donating their PPE to frontline workers, COVID-19 protocols had to be followed and paperwork had to be filed. Everyone was scrambling to figure out how to comply and keep their businesses going. So, you may or may not ask, what was I, as a construction lawyer doing? I spent March and April thinking about the new risks contractors/construction companies were facing and developing contract clauses to protect the industry. I wrote a number of blog posts with clauses to add to your contra

From Shari Shapiro's Green Building Law Blog

How Is The USGBC like Google?

Over the past couple of weeks, the USGBC announced that it was incorporating energy and water usage reporting requirements as a precondition for acheiving LEED v3 andGoogle announced that it will debut a cloud-based operating system some time in the next 18 months. The answer to how these two entities are similar is simple: both entities announced good ideas perhaps before their time.

Let's take a closer look at the reporting requirements for LEEDv3. Projects can comply with the performance requirement in one of three ways:

1. The building is recertified on a two-year cycle using LEED for Existing Buildings: Operations & Maintenance.
2. The building provides energy and water usage data on an on-going basis annually.
3. The building owner signs a release that authorizes USGBC to access the building’s energy and water usage data directly from the building’s utility provider.

Currently, accessing energy and water usage data can be very difficult, particularly without submetering. In addition, I would expect that public utilities would be loathe to turn over water and energy usage data to a third party. Finally, the turnover of operations in buildings from owner to management company and in some cases to the tenants will create layers of reporting and data gathering issues which are intense. For example, a building is submetered to tenants. What if one tenant chooses to report, and another does not?

The reporting issues go beyond the merely logistical. Ongoing reporting and monitoring by the USGBC will create a new body of work for an institution which has already come under fire due to backlogs in certification. Not only will the USGBC's new certifying sister agency have to certify new projects, but monitor old ones ad infinitim. It will create additional issues for states and municipalities which have incorporated LEED standards into their green building regulations and incentives. What happens to a 10 year property tax abatement if the project loses its LEED certification after 2 years due to failed energy savings? Additionally, as Chris Cheatham points out, there are new legal liability issues which emerge, like risks of suit to architects and engineers.

All this is not to say that the USGBC should not incorporate ongoing energy reporting into the LEED process. Like Chrome OS, the idea is a good one. I believe that a green building that does not perform should not be allowed to continue to benefit from the LEED moniker. There are a few things which could make it work better:

1. Create differrent levels of certification as time elapses--LEED at construction, different from LEED at 5 [years] or LEED at 10 [years], which reflects the ongoing achievement of green goals. This eliminates the issue of "decertification", while providing ongoing incentive to report and maintain buildings to the LEED standard.

2. Phase it in--This ensures that the reporting requirements can be complied with, and allows utilities and others to come to grips with the concept of releasing to third parties energy data. As it stands, projects registering for certification now must comply.

How can you envision the reporting requirements working more effectively?

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