Arent Fox provides services to address the emerging business needs of green building stakeholders.

Arent Fox attorneys advise owners, contractors and design professionals on the legal issues associated with green building and sustainability, particularly with respect to LEED and other green certification provisions in contracts, leases and marketing materials. We are also experienced in reviewing state and local level green building legislation, as well as translating associated requirements into contract documents.

Our attorneys are speakers and authors on the subject of green building and sustainability. For example, Partner Mark Bloom co-wrote a chapter in the Practicing Law Institute’s book, “Drafting and Negotiating Construction and Design Contracts: Meeting the Challenges of Sustainable Development 2010”. In connection with this book, Mark moderated a panel discussion at the conference sponsored by the Practicing Law Institute in July 2010. Mark also compiles and distributes the Arent Fox Green Real Estate Report, a quarterly newsletter that keeps clients and firm colleagues apprised of the latest news, trends, and developments in green building and sustainability.

Areas of Practice

Our attorneys bring a cross-disciplinary approach to clients in advising them on the emerging legal and regulatory issues associated with green real estate and construction, including:

• Green Leases: The proliferation of interest in green leases has resulted in a number of form green leases promulgated by various organizations, including BOMA, the Model Green Lease Task Force and USGBC. Arent Fox offers advice on incorporating many of the green lease provisions into commercial real estate leases, as well as risk management strategies for landlords seeking to market energy efficient or otherwise sustainable corporate office space.

• Alternative and Renewable Energy: Alternative and renewable energy installations implicate a variety of legal issues for green building stakeholders, and we are well-versed in both risk management strategies and procuring available tax incentives under federal, state and local level regulatory schemes.

• Green Building Regulatory Compliance: 14 percent of US cities larger than 50,000 people have a green building program in effect, and these figures are increasing rapidly. Arent Fox has experience in advising clients as they navigate these types of regulatory structures and assisting them in either complying with mandates or earning incentives that are offered under such programs. Most critically, we recognize the importance of translating procedures for complying with applicable programs into contract documents, as well as reviewing form construction contract provisions for potential implications from such programs.

• Green Construction and Design Contracts: Our attorneys are experienced in negotiating and drafting every manner of construction agreement.  We have drafted a variety of green construction contract provisions in order to protect our clients from the types of claims that have been reported to date in connection with green building projects.  In the green building context, our experience ranges from representing the interests of owners, consultants and design professionals in green building projects of varying scope and complexity.

• Green Building Insurance Coverage: Outside of the property insurance sector, there has been very little discussion of how green building impacts the various policies of insurance that construction industry stakeholders must procure in connection with their projects. Our group advises clients both with respect to the types of policy endorsements currently available on the market, as well as the types of coverage – or gaps therein – that traditional policies of insurance will afford a green building project team.
• Green Building Litigation: Our group has extensively reviewed and analyzed the first series of reported green building litigations in the country – Shaw Development v. Southern Builders, AHRI v. City of Albuquerque, Gidumal v. Site 16/17 Development et al., Chase Manhattan Bank v. Destiny USA, and BIAW v. State of Washington – with emphasis on contract risk management strategies for similar stakeholders. If necessary, we are prepared to use our construction and litigation experience to protect our clients’ interests in achieving their green building project objectives.

Scope of Services

The specific scope of services Arent Fox attorneys offer in connection with green building issues includes the following:

• Reviewing, preparing and negotiating green construction contracts and leases;
• Incorporating the appropriate LEED requirements into contract documents, and providing counsel during the course of the LEED certification process;
• Assisting in identifying municipalities providing financial incentives for green development or mandating compliance with particular rating systems and translating associated requirements into contract documents;
• Assisting in procuring and securing appropriate insurance coverage for green building projects;
• Reviewing  and proposing language for green building project marketing materials on behalf of owners, with particular emphasis on accurate representations regarding property’s green features and/or anticipated level of third-party certification;
• Reviewing and preparing written comments and advice with respect to drafts of municipal or state-level green building ordinances as well as advice on how similarly situated municipalities and states have crafted green building legislation;
• Providing recommendations regarding certification under other green building (or green product) rating systems, including the Green Building Initiative’s Green Globes, Green Seal and NAHB;
• Performing research and preparing written compilations of white papers or industry trend reports; and
• Providing green building stakeholder education through the development of written materials or speaking engagements.