Hawaii Green Building Law

Rhode Island recently passed “The Green Buildings Act” (2009-S 0232B), requiring that all new major public facility projects and major building renovations in Rhode Island, including schools, be designed and constructed in conformance with high performance green building standards.

The new law applies to new construction of more than 5,000 square feet and renovation of spaces greater than 10,000 square feet if such projects receive any funding from the state. The law takes effect immediately but will apply only to buildings entering the design phase after Jan. 1, 2010.

Under the law, building design must conform to the United States Green Building Council Leadership in Energy and Environmental Design (LEED) rating system or an equivalent high-performance green building standard, including the Northeast Collaborative for High-Performance Schools Protocol.

Rhode Island’s green legislation is similar to the green building requirements established by the Hawaii legislature. However, the Rhode Island law only requires construction to meet LEED “certified” level, as opposed to an increased lever of LEED silver, gold or platinum. Under Hawaii law, each state agency must, among other things:

Design and construct buildings meeting the Leadership in Energy and Environmental Design silver or two green globes rating system or another comparable state‑approved, nationally recognized, and consensus‑based guideline, standard, or system, except when the guideline, standard, or system interferes or conflicts with the use of the building or facility as an emergency shelter.

Rhode Island lawmakers also addressed the liability issue. The law states:

37-24-6. Protection from liability. – No person, corporation or entity shall be held liable for the failure of a major facility project to meet the LEED certified standard or other standards established for the project as long as a good faith attempt was made to achieve the standard set for the project.

In other words, contractors, design professionals and any stakeholders involved in building green government buildings in Rhode Island will not face liability for the failure to the building to obtain LEED certification as long as a “good faith attempt” was made (notably the term “good faith attempt” was left undefined).

I’ve repeatedly written that green buildings are ripe for litigation. The Rhode Island statute attempts to address such liability up front, before construction. Hawaii’s green building statute does not address liability. Likewise, stakeholders involved in private, non-governmental projects even in Rhode Island do not fall under the protection from liability provision in the Rhode Island statute.

The risks are real and each party involved with a green building project must consider the risks and benefits in submitting bids and negotiating contracts. Stakeholders should consult with counsel with knowledge of green building certification.

A colleague of mine (also a LEED-AP, Esq.) found a post on Green-Buildings.com posing the question…is the LEED exam more difficult than state bar exams?

The article recognizes that:

[W]ith green building quickly becoming written into law across the United States, real estate attorneys, investors, construction and operations professionals are finding that understanding green building may be critical to ensuring that client sustainability goals are achieved.

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Understanding the nuances of sustainability law requires constant study as more law firms add “LEED AP” to their credentials and launch practice groups focused on green businesses.

If you’re reading this post, you probably know that I am an attorney and a LEED-AP. In fact, the law firm that I am with has several attorney/LEED-APs [shameless plug]. It’s difficult to draw comparisons between the respective difficulties of the LEED exam vs. the bar–they are two completely different tests that require different approaches.

While it is difficult to compare the tests, attorneys that become LEED-APs demonstrate that they are dedicated to both the law and helping their clients understand sustainability and the regulations surrounding green building.

Green building and sustainable development, while not entirely new concepts are growing rapidly. Despite this growth, aside from a few legal commentators, the industry for the most part has largely ignored the legal aspects of developing and owning green buildings. As attorneys with an understanding of green building issues, we hope to spark discussion regarding both the risks and rewards of green building.

With proper planning the risks can be limited and addressed at an early stage. This blog seeks to provide a resource for updated coverage of the growing legal issues surrounding green building in Hawaii and beyond.