Green Construction Materials: Mitigating Risks, Reps and Warranties, Defective Sustainable Materials

Use of Low Carbon Concrete, Mycelium Fungi, Bamboo, and Hemp in New Project Development

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Wednesday, June 1, 2022

Recorded event now available

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Course Materials

This CLE webinar will discuss the use of green construction materials in new projects and the risks and liabilities associated with such use. The panel will discuss how a first in the nation county regulation that established a mandatory low carbon concrete specification is leading the way in the use of construction materials that address climate change. The panel will also discuss how to present representations and warranties in construction contracts that utilize green materials and how the liability for potential construction defects should be addressed.

Description

As the American Institute of Architects (AIA) raises the bar in response to climate change, architects and design professionals are partnering with clients, contractors, and manufacturers to source materials that meet new environmental goals, as part of a larger effort to improve resiliency for the future. Greener building materials are key to halting climate change. Currently, buildings produce about 40 percent of the world's fossil-fuel carbon-dioxide emissions.

However, green building projects commonly employ new or untested construction materials, require construction methods that lack significant track records, and ultimate building performance often fails to meet design expectations. As such, green building projects may give rise to entirely new types of legal risk that should be considered and allocated early in the process.

When thinking about alternative construction materials, consider that concrete is the largest single material source of embodied emissions in buildings and makes for more than eight percent of global greenhouse gas emissions. Replacing cement with currently available alternative cementitious materials, such as fly ash or slag, and other practices to "decarbonize" concrete has the potential of reducing total emissions from concrete by more than half. Marin County, Cal., modified its building code regulating allowable mix design and materials for plain and reinforced concrete. Low carbon concrete is one of the cutting-edge materials being used in project development, together with items like hemp and bamboo.

The AIA states that the standard against which architects are to be measured should be "consistent with the professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances." Because green building projects often include novel or untested construction materials or materials lacking a significant track record, determining whether the design professional acted with the skill "ordinarily provided" by other professionals may be difficult, if not impossible, and will almost always result in a fact-intensive inquiry. From a design perspective, green building projects often occupy the bleeding edge of the industry, and without a significant track record and history, it can be difficult to determine whether a subsequent failure in building performance is due to professional negligence or is simply because a novel construction material ultimately did not work.

Listen as our expert panel of construction attorneys discusses how the use of green construction materials creates potential liability, how to mitigate those risks, and what representations and warranties should be included in a construction contract to address those issues.

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Outline

  1. Green construction materials use
    1. History
    2. AIA standards
  2. Types of materials
    1. Low carbon concrete
    2. Mycelium fungi
    3. Hemp
    4. Bamboo
  3. Construction contracts
    1. Reps and warranties
    2. Mitigating risks
    3. Assessing defects
  4. Best practices

Benefits

The panel will discuss these and other key topics:

  • What is the AIA standard and assessment of the use of alternative and green construction materials?
  • How can counsel mitigate the risk of use of green construction materials in the original contract?
  • How are construction defects assessed when using green materials without long track records?

Faculty

Perrone, Patrick
Patrick J. Perrone

Partner
K&L Gates

Mr. Perrone concentrates his practice on construction and product defect matters. He is an experienced trial attorney...  |  Read More

Stempler, Mark
Mark J. Stempler

Shareholder
Becker & Poliakoff

Mr. Stempler focuses his practice in the areas of construction litigation, government bid protests, and civil...  |  Read More

Vitiello, Gina
Gina M. Vitiello

Shareholder; Chair Construction Law Section
Chamberlain Hrdlicka White Williams & Aughtry

Ms. Vitiello practices contract law and commercial litigation with an emphasis on issues related to the...  |  Read More

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