Before you market your business as “Green” you should read this.

By Rudman Winchell Attorney

Green Building in Maine

By: Rudman Winchell attorney Mark D. Beaumont

As energy prices have continued to rise over the past decade, more and more homeowners and commercial property owners have looked for ways to reduce their energy consumption and increase energy efficiency.  Predictably, this has led to a growing number of architects, engineers, contractors and developers looking for ways to establish a foothold in this burgeoning, and lucrative, green building market. As each company seeks to distinguish itself from the others, they commonly do so by marketing themselves as being on the “cutting edge” of green building techniques and industry standards.  While this may be an attractive marketing strategy, businesses should take care not to overreach or overpromise in such marketing statements and be aware that such broad statements could lead to unreasonable customer expectations and potential civil liability.

The one constant for everyone in the construction industry in Maine, including those specializing in green building, is the need to comply with Maine’s building code and local ordinances.  In 2007 the legislature initially adopted the Maine Uniform Building and Energy Code (“MUBEC”), which has been subsequently amended, and entered state-wide enforcement earlier this year.  The MUBEC includes Maine’s current green building code, which is based on the International Code Council’s (“ICC”) 2009 International Energy Conservation Code, and has been the local standard for green building since its adoption.

Many businesses, however, may not be aware that in November 2011, the ICC finalized its first model code aimed entirely at establishing a regulatory framework for the green building movement – the 2012 International Green Construction Code (“IgCC”).  The IgCC, which was released on March 28, 2012, was written to be used in conjunction with the other ICC codes and establishes several levels of compliance so as to allow communities the flexibility of adopting those requirements that they deem appropriate for their individual needs.  While there is no current indication that the Maine legislature is looking to amend the MUBEC to include the IgCC, given the legislature’s previous reliance on the ICC codes as a basis for the MUBEC, it is possible, and perhaps likely, that a bill to amend the MUBEC to incorporate the IgCC standards may be introduced in the coming years.

With the temptation to market your business as being on the “cutting edge” of green technology and green building techniques, businesses should be aware that even though it has not been adopted in Maine, the IgCC is the latest standard. 

Since Maine does not yet formally recognize the IgCC, green builders may safely rely upon the green building standards in the MUBEC.  However, businesses should be aware that marketing themselves as complying with the latest standards may send an unclear message to customers.  While the business may intend to convey that its work complies with the MUBEC, to those clients with knowledge of the IgCC, such general statements may be inadvertently creating expectations that the business’s work will comply with the standards of the IgCC, which will almost certainly open you up to greater risk at the hands of a dissatisfied client.

Those professionals that truly do intend to hold themselves out as being in compliance with the latest advances in green building, with the full intention of utilizing the IgCC, should do so with caution.  The IgCC may be the latest advance in industry standards, and while it provides increased guidance and clarity for green building specialists, it may also give rise to a standard of professional care that is above and beyond that typically required by the MUBEC. 

So if you are looking to market your business as a leader in the green building movement, be sure to clearly delineate the standards under which your business operates and try to avoid generalities where possible.  Not only do vague generalized statements increase the potential for confusion, but customers are likely to be impressed by your knowledge of, and ability to clearly articulate, technical industry standards. 

If you have questions about the contents of this article, or if you have any other construction-related legal issues or wish to speak with us about potential risk avoidance measures your business can take, we welcome the opportunity to assist you.

Disclaimer


These materials have been prepared by Rudman Winchell for educational purposes only. They should not be considered legal advice. The transmission of this information to you is not intended to create a lawyer-client relationship. Readers should not act upon this information without seeking professional counsel. You should not send any confidential or private information to Rudman Winchell until a formal attorney-client relationship has been established, in writing.