Who Will Be Held Liable for Green Designs?

Dec. 1, 2010
Green-building professionals are being warned not to promise specific results

Editor's note: The following is Part 2 of a three-part series. Read Part 1, "Green Buildings and Energy Efficiency," and Part 3, "The True Cost of LEED Certified Green Buildings.

During the early 1980s, solar power became popular in residential construction. Developers were promising "nice and cozy" solar-heated rooms in climates that experienced average winter solar days of 10 to 20 percent. Although they were spending large amounts of money, owners found their homes never reached indoor temperatures above 60˚F and quickly realized they had been misled about the efficiency of solar energy. Lawyers across the United States were quick to launch a series of lawsuits and fraud claims.

Looking back, it is clear the architects, builders, and homeowners were equally guilty of ignorance. Caught up in the latest alternative-energy-source fad, none of the parties involved performed due diligence. In fact, anyone taking the time to investigate the technology behind solar energy would have discovered a solar, or Trombe, wall would not rise above 60˚F to 62˚F. Lawsuits quickly put an end to solar designs. A parallel phenomenon is emerging in the green-building field.

Promises and Expectations

Since the energy crunch and failure of solar systems, architects, engineers, and contractors have been searching for alternative energy sources. Currently, the U.S. Green Building Council (USGBC)—a third-party organization—determines green-design guidelines. While the USGBC has brought more awareness to the green movement, it also has prompted agencies and associations, such as the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) and ASTM International, to adopt guidelines without proper scientific scrutiny. While adopting and mandating third-party guidelines, these agencies inadvertently have positioned themselves to promote, sanction, and even demand design and construction practices that result in "green" buildings that are less efficient, more costly, and less sustainable than well-thought-out non-green/"traditional" buildings. The end result could be similar to what occurred 30 years ago during the solar-construction debacle.

Insurance companies already are looking at green designs with suspicion. In fact, a large errors-and-omissions insurer has been advising building professionals to avoid lawsuits and pitfalls by giving only realistic promises and guarantees for green designs and steer clear of unrealistic systems performance or "mismatched" expectations. "Inexperienced" owners (especially non-profits, religious organizations, one-time developers, and homeowners) can be especially susceptible to unethical building practices.

In Travelers Insurance's December 2009 circular, "Stamped, Sealed & Delivered," Holly Newman of Macall, Crounse & Moore PLC warns design professionals about making promises.

"(They) could find themselves faced with a claim," she says. "Owners can be demanding and unwary professionals who give promises of certain results … can find themselves unable to deliver. Promises of such results could expose the design professional to uninsured claims."

Typical errors-and-omissions insurance policies will not cover green-design errors/omissions because warranty language in LEED letter templates required for USGBC certification nullifies insurance-policy language.

Additional danger areas include the voluntary and involuntary increase in legal "standard-of-care" design requirements and misplaced reliance on product data/information, suitability, and performance. LEED guidelines are not the "standard-of-care" measuring stick for architects and engineers. LEED simply is a collection and categorization of the various possibilities open to designers. None of the LEED-dictated components are new; the danger lies in the undisciplined combinations of building systems.

Insurers have warned building professionals about guaranteeing building-certification levels. Additionally, representations or claims of increased worker productivity/performance, decreased absenteeism, reduced carbon footprints, and increased cost/energy savings cannot be quantified easily. These types of promises can lead to legal claims if design expectations are not realized.

Currently, if a design professional does not heed the advice of a LEED Accredited Professional, his or her building most likely will not receive the sought-after certification level and, more importantly, may not obtain a certificate of occupancy. If the wanted certification level is achieved, but something goes awry, the designer ultimately will be responsible for the failure. This is an area that needs to be addressed; green-design guidelines should clearly define building professionals’ roles and responsibilities. If not, lawsuits surely will follow. Lawsuits over misrepresented and underperforming LEED-certified buildings already have been filed.


The USGBC has been advising licensed professionals on how to create green buildings. Yet, the organization has no professional design qualifications and will not accept responsibility for its guidance or advice. Because of the likelihood of a lawsuit or claim, it is suggested that design professionals add contract provisions denying responsibility for any LEED consultant’s work. Architects and engineers also can obtain "disclaimer" language from professional insurance companies to include in their contracts.

Several complaints that accuse building professionals of false advertising, fraud, and non-performance, including a case reported on by HPAC Engineering, have been filed. (HPAC Engineering reported on this issue in "Appeal Raises Questions About LEED Certification" by Gina Vitiello, LEED AP, August 2010. However, claiming that a building's underperformance is the result of an erroneous submittal or bad construction is nonsense. The USGBC is promulgating and publishing green-building-design guidelines. It requires certification, verification, and registration fees; controls the evaluation of the end product; and decides on certification level. Therefore, the organization should be held legally and financially responsible for the end results.

If the USGBC is serious about LEED guidelines, it needs to start addressing these issues. Otherwise, the green-building movement will experience a fate similar to that of the '80s solar fad.

Stephen J. Vamosi, PE, is principal and chief executive officer of Intertech Design Services (www.intertechdesign.net), an architecture and engineering firm specializing in the design of commercial, medical, educational, and retail buildings. He also is a professor emeritus for the University of Cincinnati and a member of the American Society of Heating, Refrigerating and Air-Conditioning Engineers.