Green design: Risk or reward?
Engineers should wonder about the risks of helping their clients go green—and how to manage these risks.
By Kenneth M. Elovitz, PE, Esq., Energy Economics Inc., Foxboro, Mass.
Building owners and clients want to join the green and sustainability craze, even if they don't really know what they're signing on for. Engineering practice is, accordingly, evolving to incorporate green ideas and concepts. Engineers should wonder about the risks of helping their clients go green—and how to manage these risks.
The best known green building certification is the U.S. Green Building Council's (USGBC) LEED program . Many designers have attained LEED Accredited Professional (AP) status already. Anyone—not just architects and engineers—can become a LEED AP.
The USGBC is not a government agency. Accordingly, the LEED program is entirely voluntary, though individual jurisdictions might have authority to make some level of LEED compliance mandatory. Also, there is nothing to prevent private building owners and developers from making LEED certification a design criterion for their project.
USGBC developed its LEED program to certify new and existing buildings as sustainable. The LEED program assigns points to various design features and construction procedures. Depending on the number of points, a project can achieve LEED certification at different levels.
The USGBC's program is not the only way to obtain green building certification. The Green Building Initiative is another private, nonprofit organization that promotes environmentally friendly building and rates buildings. The Green Building Initiative administers the Green Globes program in the United States.
The National Society of Professional Engineers (NSPE) and the AIA didn't want to be left out of the green movement. Recent revisions to their professional codes of ethics encourage “environmentally responsible design.”
Engineers are encouraged to adhere to the principles of sustainable development in order to protect the environment for future generations.
A footnote defines sustainable development as “the challenge of meeting human needs for natural resources, industrial products, energy, food, transportation, shelter, and effective waste management while conserving and protecting environmental quality and the natural resource base essential for future development.”
Canon VI of the AIA Code of Ethics, Obligations to the Environment, contains three ethical standards related to sustainability:
• 6.1 Sustainable Design: In performing work, members should be environmentally responsible and advocate sustainable building and site design. (Author's note: Unless this provision is aimed at contractors who might be members of the AIA, the association seems to be confused about the distinction between “services,” which professionals provide, and “work,” which contractors perform. It's doubtful that the AIA intended to suggest that architects are responsible for environmentally sound execution of the work of the project.)
• 6.2 Sustainable Development: In performing professional services, members should advocate the design, construction, and operation of sustainable buildings and communities.
• 6.3 Sustainable Practices: Members should use sustainable practices within their firms and professional organizations, and they should encourage their clients to do the same.
Both the NSPE and AIA ethical standards are aspirational, not mandatory. However, it does not take a lot of imagination to anticipate that dissatisfied plaintiffs will attempt to elevate both the AIA and NSPE ethical standards to minimum elements of the standard of care. It's already been tried. The case of Michael v. Huffman Oil Co. Inc. (661 S.E.2d 1, NC App., 2008) involved an expert who testified that an engineer's failure to comply with a code of ethics for engineers constituted a deviation from the standard of care. Fortunately for engineers, the court held that neither the licensing statute nor the code of ethics created a specific standard of care for engineers. So the professional societies' lofty goals have not yet percolated down to professional standards that are impractical for their members to meet.
What risks do LEED, Green Globes, and the buzz about sustainability create for engineers, and how can engineers identify and manage those risks?
1. Be aware that people (your architect clients) may be making promises for someone else (you, the engineer) to keep. The latest (2007) edition of the AIA contract documents requires the architect to consider green design. Section 184.108.40.206 of the AIA B101-2007 Standard Form of Agreement Between Owner and Architect agreement says:
The architect shall consider environmentally responsible design alternatives, such as material choices and building orientation, together with other considerations based on program and aesthetics, in developing a design that is consistent with the owner's program, schedule and budget for the cost of the work. The Owner may obtain other environmentally responsible design services under Article 4.
Most readers of this magazine are engineers, not architects, but they are consultants to architects. The architect clients will likely expect MEP engineers to fulfill the environmental responsibility aspects of the owner-architect agreement that relate to MEP system design.
As with any other system selection analysis, engineers need to document the “environmentally responsible design alternatives” they considered and communicate that analysis to the architect in a format the architect can share with the owner. Any decisions that come out of this collaboration, including whether to pursue or abandon certain alternatives, also should be documented in a matter-of-fact, objective manner. That documentation should include a discussion of what benefits can be expected to accrue if the owner selects certain alternatives. If those benefits include reduced energy use, the documentation needs to identify the amount of reduction and compared to what.
2. Avoid promising to achieve results that are beyond your control. Designers working on projects intended for LEED certification undoubtedly use their best efforts and make honest interpretations about what qualifies for the targeted LEED credits. However, when the project is submitted for evaluation and certification, USGBC is under no obligation to agree or to grant any particular credit. To avoid this problem, express the contract for design services in terms of efforts the design team will make or specific steps they can take. Do not promise to achieve a particular certification level or even that a certain credit will be obtained.
3. Different people have different ideas about what constitutes “environmentally responsible design.” Those ideas could be one thing during the design phase of the project and something different after the building is occupied and the owner is unhappy with some aspect of the MEP systems. It is not enough to agree to consider or incorporate “environmentally responsible design.” Define the term. If energy or water use is the entire scope of the environmental consideration for your trade, say so. If the environmentally sensitive aspect of the design is to use locally manufactured or fabricated products (to reduce air pollution from transportation), identify that goal and state which products fall into that category and which do not. (Depending on where you live, it might be possible to obtain locally fabricated electrical switchboards, but not rooftop HVAC units.)
4. It is also important to realize that achieving green certification does not guarantee low operating cost. Energy costs are only one component of sustainable design. It is possible for a green building to have higher operating cost than a comparable conventional building. At the same time, not achieving green certification does not signify a problem or deficiency with the building. Buildings can be successful and have low operating cost without applying for or receiving green certification.
5. Sustainable design often promises some type of return on investment. Be clear about how that return is measured. It might not be measured in dollars, though the building owner is likely to think mostly in dollars. Speaking of dollars, sustainable design cannot guarantee reduced costs—many factors outside the designer's control affect both the units of energy (or water or other commodity) consumed and the cost per unit. However, if a designer promises that a system will reduce costs, the law will enforce that promise.
6. New design concepts (like sustainable and environmentally responsible design) often involve using new products and systems or applying familiar products or systems in new ways. That often means the owner is a pioneer and has to be prepared for bumps in the road. Systems and equipment might not start up smoothly and might not work as expected right away. Early adopters are not always early winners. Don't let clients forget about the risks they decide to take—document the decision and its ramifications when the client makes the decision.
7. It doesn't matter how green or sustainable the system is unless it works. Regardless of whether the system is conventional or “environmentally responsible,” it is important to define performance criteria in a way that can be measured. For HVAC systems, that's usually indoor temperature and humidity at specified outdoor conditions. There is no objective way to show that an underfloor air distribution, displacement ventilation, or natural ventilation system makes occupants more “comfortable.” The definition and perception of “comfort” can change from hour to hour and from person to person.
Elovitz is an engineering consultant and in-house counsel with Energy Economics Inc. A graduate of Lehigh University and Suffolk University Law School, he is a member of the Massachusetts bar and writes occasionally on risk- and practice-management matters for several engineering publications. His work at Energy Economics covers both new and existing buildings and ranges from developing design concepts and performance criteria to field testing, analysis, and problem solving.
Several environmental law resources are available:
%%POINT%% “The Green Building Revolution: Addressing and Managing Legal Risks and Liabilities,” Kate Bowers and Leah Cohen, Environmental Law & Policy Clinic, Harvard Law School, Cambridge, Mass., March 10, 2009.
%%POINT%% Green Building Law Update: www.greenbuildinglawupdate.com .
%%POINT%% Green Real Estate Law Journal: www.greenrealestatelaw.com .
%%POINT%% Manko Gold Katcher Fox LLP: www.mgkflaw.com/ publications.html .