Overview of Green Building and Associated Legal Issues

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In recent years, many types of businesses—including the commercial retail industry—have focused increasingly on constructing and operating buildings in an environmentally sustainable manner. This trend is often referred to as the “green building” movement and has been fueled not only by customer demand and concern for the environment, but also by the increasing potential cost benefits associated with energy efficiency and the use of sustainable materials. This article describes some general history and background with respect to green building, including attempts to define “green building,” as well as some of the legal issues that often arise in the “green building” arena. These legal issues include: (1) contractual promises or guarantees with respect to the efficacy of energy performance or savings measures; (2) contractual promises or guarantees with respect to certification of buildings under Leadership in Energy and Environmental Design (LEED) or other rating systems; (3) the veracity of claims by various companies of being “green” despite evidence to the contrary, popularly known as “greenwashing”; and (4) the allocation of risk and other transactional issues with respect to distributed renewable generation, such as rooftop solar panels.