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Moving into the LEED

By Mark Green

Green construction trends are creating a new subspecialty of legal practice. Increasingly, the marketplace wants to be “green,” but meeting the U.S. Green Building Council (USGBC) standards for certification means the new specifications in the various contracts are necessary at all stages of a project.

Enter the green construction lawyer.

It’s a fresh, evolving area of practice for Buckner “Buck” Hinkle Jr., a longtime construction law specialist based in the Lexington office of Stites & Harbison, the state’s largest firm. Hinkle grew up in a construction family. Bourbon County-based Hinkle Contracting remains a major builder in the commonwealth.

“Owners are the key,” said Hinkle, who was a presenter at a recent green construction seminar. They initiate projects and have to determine at the outset whether to pursue the certification that will make the finished product “green.” The official stamp of approval is bestowed by the USGBC through its Leadership in Energy and Environmental Design Green Building Rating System, known as LEED certification.

Achieving a LEED rating begins with the design, and that means writing it into the initial contract with the architect, whether a traditional design-bid-build project or the  newer integrated-project deliver process, Hinkle said. (The latter approach creates a collaborative partnership of sorts among the owner, the architect-designer and the contractor, which can be of benefit when LEED certification is the goal because problems are avoided.)

Kentucky now has nine completed, LEED-certified structures, and several dozen more in various stages of design and construction, according to the USGBC Web site.

“It’s certainly in its infancy in Kentucky,” said Clifford Ashburner, a partner at the Bardenwerper, Talbott & Roberts law firm in Louisville. Ashburner last month became the state’s first LEED Accredited Profession attorney.

Early adopters are tending to be owner-users, according to Ashburner, who is also a board member for the Kentucky chapter of the USGBC. That’s because hard return-on-investment numbers remain elusive, but green projects are believed to be bearing fruit for the more productive work environment that results. He cited Toyota Motor Manufacturing in Georgetown and Jewish Hospital Properties in Louisville, whose North American Production Support Center and Jewish Medical Center South, respectively, each have Silver LEED certification.

A healthier indoor work or living space, one of the benefits of green construction, has a more immediate and measureable payoff for an owner-user than reducing one’s environmental impact and use of resources, Ashburner said. LEED certification means the building will have cleaner air, more light and other aspects that not only are more comfortable but positively impact employees’ health, absenteeism, productivity and company health-care costs.

LEED rated buildings are designed, built and managed to promote maximum resource and energy efficiency, healthy indoor environments and use of renewable natural resources. A hallmark is efficient energy and water use, usually achieved through the use of efficient materials in construction and the integration of water and energy conservation systems. Buildings tend to incorporate environmentally friendly concepts and materials into the use of the surrounding land and landscaping.

LEED certified buildings use key resources more efficiently than conventional buildings that are simply built to code. LEED certification will increase the cost of initial design and construction, but the USGBC and green advocates say these costs typically are mitigated over time through lower operating costs.
According to USGBC, an initial additional investment of 2 percent will be returned more than tenfold over the life of the building.

However, Ashburner said, return on investment numbers can vary by region and will be lower in Kentucky because the commonwealth’s natural resources make utility costs here among the lowest in the United States.

Pursuit of lower operating costs, especially for energy, is starting to become the norm, however. It’s policy for many public entities, such as the federal government.

Last year’s Kentucky General Assembly passed House Majority Floor Leader Rocky Atkins’ HB 2, which encourages the use of green building principles and energy-saving contracts for state-owned buildings. It created a state High Performance Buildings Advisory Committee and provides for implementing low-cost/no-cost energy conservation measures, engineering analyses, energy efficiency measures, building improvements, and monitoring of results for state-owned or state-leased buildings.

In 2007, HB1 enacted instructions to the Finance and Administration Cabinet to use LEED or other rating systems to develop green building incentives for private development in Kentucky.

Hinkle notes that the American Institute of Architects, which has long published basic standard contract documents, began including “green elements” in 2007.

Standard consensus documents from the Association for General Contractors of America and the American Subcontractor Association that have been on the scene for about 20 years also are including green provisions that “are just hitting the streets,” Hinkle said.

When it comes to green construction, Hinkle said, one big question must be answered before anything concrete happens: “What is it that the owner wants (for an outcome) and how are you going to define performance?”

Beyond straight profitability, motivations for a client to go green can include improving their image with customers or the community at large; being more competitive by lowering long-term operating costs; creating a better, healthier work environment; even a desire “to do the right thing.”

Defining that performance and who is responsible for it is a critical legal issue for any construction contract, probably more so for green projects. According to Ashburner, lack of clarity is a recipe for disputes, claims and litigation.

When it comes to achieving LEED certification, Hinkle said, “You don’t know if you meet it until the project is over.” The decision is completely in the hands of the USGBC.

The lawyer’s role, he said, is to help the client understand the risk and advise them on the clarity of their contracts. Legal counsel can also help an owner make the front-end decision about what delivery process – design-bid-build or integrated project deliver – is best for their project, Hinkle said.

Kentucky construction project owner-developers are going through a learning process on green construction, he said. It’s a new area, and most owners don’t do numerous projects over the course of their career, so it’s understandable that there’s not a lot of experience upon which to draw.

LEED Project Checklist
Sustainable Sites (14 Possible Points)
Erosion & Sedimentation Control Required
Site Selection: 1
Urban Redevelopment: 1
Brownfield Redevelopment: 1
Alternative Transportation:
Public Transportation Access: 1
Bicycle Storage & Changing Rooms: 1
Alternative Fuel Refueling Stations: 1
Parking Capacity: 1
Reduced Site Disturbance:
Protect or Restore Open Space: 1
Development Footprint: 1
Stormwater Management:
Rate or Quantity: 1
Treatment: 1
Landscape & Exterior Design
to Reduce Heat Islands:
NonRoof: 1
Roof: 1
Light Pollution Reduction: 1

Water Efficiency (5 Possible Points)
Water Efficient Landscaping:
Reduce by 50%: 1
No Potable Use or No Irrigation: 1
Innovative Wastewater Technologies: 1
Water Use Reduction:
20% Reduction: 1
30% Reduction: 1

Energy & Atmosphere
(17 Possible Points)
Fundamental Building Systems Commissioning Required
Minimum Energy Performance Required
CFC Reduction in HVAC&R Equipment Required
Optimize Energy Performance:    20% New / 10% Existing: 2
30% New / 20% Existing: 2
40% New / 30% Existing: 2
50% New / 40% Existing: 2
60% New / 50% Existing: 2
Renewable Energy:
5%: 1
10%: 1
20%: 1
Additional Commissioning: 1
Ozone Depletion: 1
Measurement & Verification: 1
Green Power: 1

Materials & Resources
(13 Possible Points)
Storage & Collection of Recyclables Required
Building Reuse:
Maintain 75% of Existing Shell: 1
Maintain 100% of Shell: 1
Maintain 100% Shell & 50% Non-Shell: 1
Construction Waste Management: Divert 50%: 1
Divert 75%: 1
Resource Reuse:
Specify 5%: 1
Specify 10%: 1
Recycled Content:
Specify 25%: 1
Specify 50%: 1
Local/Regional Materials:
20% Manufactured Locally: 1
Of 20% Above, 50% Harvested Locally: 1
Rapidly Renewable Materials: 1
Certified Wood: 1

Indoor Environmental Quality
(15 Possible Points)
Minimum Indoor Air Quality (IAQ) Performance Required
Environmental Tobacco Smoke Control Required
Carbon Dioxide Monitoring: 1
Increase Ventilation Effectiveness: 1
Construction IAQ Management Plan: During Construction: 1
Before Occupancy: 1
Low-Emitting Materials:
Adhesives & Sealants: 1
Paints: 1
Carpet: 1
Composite Wood: 1
Indoor Chemical & Pollutant
Source Control: 1
Controllability of Systems:
Perimeter: 1
Non-Perimeter: 1
Thermal Comfort:
Comply with ASHRAE 55-1992: 1
Permanent Monitoring System: 1
Daylight & Views:
Daylight 75% of Spaces: 1
Views for 90% of Spaces: 1

Innovation & Design Process
(5 Possible Points)
Points for this category are awarded above and beyond the core 64 points. Examples for up to four design points using steel construction include structure as finish, structure as plumbing, lightweight materials, recyclability, and potential for disassembly.

Project Totals: 69

Possible Points
Certified: 26-32 points
Silver: 33-38 points
Gold: 39-51 points
Platinum: 52-69 points