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

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.