September/October 2021 - 125

BRIAN S. WOOD, PARTNER, SMITH CURRIE
LEGALLY SPEAKING
Unresolved Legal Issues Around Sustainability
This article will be the first of two about
legal issues associated with the related
concepts of sustainability and smart design and construction.
As used today, the term sustainability is difficult to define.
Oxford Languages defines it as the ability to be maintained at a
certain rate or level, and the avoidance of the depletion of
natural resources in order to maintain an ecological balance.
In 2005, the United Nations General Assembly's World
Summit Outcome adopted a resolution describing sustainable
development as a balance of economic development, social
development and environmental protection (Resolution
A/60/1, adopted September 15, 2005). With respect to
development, sustainability means balancing efforts to meet
basic human needs with protecting the environment.
For engineering and construction purposes, sustainability
means reducing environmental impacts while addressing
financial concerns, all without compromising technical
standards. With respect to geotechnical engineering and
construction, Misra and Dipanjan translate this into the
following measures:
* Application of alternative materials
* Material reuse and recycling
* Development of environmentally friendly groundimprovement
techniques
* Efficient use of underground space
* Reuse of foundations
* Energy geotechnics (SUSTAINABILITY IN GEOTECHNICAL
ENGINEERING, Internal Geotechnical Report 2011-2,
University of Connecticut)
In modern engineering design and construction, sustainability
is evaluated and measured by various certifying organizations,
such as the Leadership in Energy and Environmental Design
(LEED), Green Globes and Energy Star. LEED is the most widely
used sustainability construction, or " green-building, " rating
system globally. LEED rates sustainability measures for all
aspects of project delivery and use, from design to construction,
and ultimately, operation.
Contractual Implications
Sustainable construction and green-building concepts have
been translated into contractual requirements for contractors
and subcontractors. In 2005, the American Institute of
Architects (AIA) published a suite of sustainable project form
contracts meant to address these requirements, including
A201-2007 SP, about general conditions of the contract for
construction, and A401-2007 SP, a standard form of agreement
between contractor and subcontractor. ConsensusDocs
followed in 2009 with contract form 310, Green Building
Addendum. These documents incorporate green-building
certification by a rating system, specifically naming LEED,
Green Globes and Energy Star as example acceptable rating
organizations.
Working on a project with such sustainability requirements
presents unique risks for contractors and subcontractors.
These include:
* Standards that are not within the contractor 's or
subcontractor's competence
* Costs of certification
* Lack of knowledge of or experience with new products and
technologies
* Uncertainty about the performance of new and untested
products and technologies for which the contractor or
subcontractor are required to provide warranties
* Unclear description of the parties' contractual roles and
responsibilities for sustainability measures and goals
Unfortunately, apart from the sustainability certifications, the
industry form contracts are not perfectly clear as to the specific
measures and obligations of the contractor or subcontractor for
achieving sustainability or the remedies for noncompliance.
For example, AIA employs circular, nebulous language to
describe the overall sustainability objective in A201-2007 SP.
The Sustainable Objective is the Owner's goal of incorporating
Sustainable Measures into the design, construction,
maintenance and operations of the Project to achieve a
Sustainability Certification or other benefit to the
environment, to enhance the health and well-being of building
occupants, or to improve energy efficiency.
These form contracts leave open several contractual and legal
questions about which courts have yet to reach a consensus
or otherwise resolve. These include:
*
If the contractor has agreed to LEED provisions in the
prime contract, but does not use a subcontract that
expressly addresses LEED requirements, does the
subcontractor assume the obligations as a result of the
general flow-down clause?
DEEP FOUNDATIONS * SEPT/OCT 2021 * 125
September/October 2021

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