Illinois Construction Law Blog : Illinois Construction Lawyer & Attorney : Foran Glennon Palandech Ponzi & Rudloff Law Firm : Chicago IL

As we noted here, as of April 22, 2010, federal law requires contractors performing renovation, repair and painting projects that disturb lead-based paint in homes, child care facilities, and schools built before 1978 to be certified and must follow specific work practices to prevent lead contamination. The requirements apply to renovation, repair or painting activities.

We have been monitoring Illinois SB 2540, introduced by Senator Wilhelmi, which will address at least part of the confusion regarding the remedy associated with the Home Repair Act.  SB 2540 passed the Illinois Senate on April 15, 2010, and appears to be headed to the Illinois General Assembly. The proposed amendment will entirely replace Section 30 of the Act to clarify and more accurately identify the remedies available to private parties under the Act.  The Home Repair Act has the laudable goal of making sure that a contractor utilizes a written contract and provides a Consumer Rights Brochure to home owners who engage them to undertake home remodeling work valued in excess of $1,000. As a consumer protection oriented statute, the intended remedy for a violation of the Act was to be found under the Consumer Fraud and Deceptive Business Practices Act. However, the Act does not sufficiently spell out this remedy, and the Illinois Appellate Courts have been inconsistent in applying it.  The goal of the bill is to clarify the confusion that now exists among the courts. We will continue to keep you advised.

We are also happy to report that the Illinois Construction Law Blog is now available to iPhone and iPad users through the AEC Info iPhone App. This is a free iPhone/iPad app available in the iTunes store in the Law category.  You may access the website through your iPhone/iPad web browser, make posts, send them through email, or even share them on Twitter. The app offers the latest industry headlines and insight from across the web.

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In July of this year Governor Quinn signed the Illinois Green Buildings Act (20 ILCS 3130/1 et seq.) into law. The bill outlines instructions and guidelines for Green Building Standards to be used in the development, design and construction of Capital Development Board projects. The bill mandates that the projects conform to LEED, Green Globes or some other “equivalent certification.” In addition to the bill, the CDB has instituted Green Building Guidelines for State Construction which do not offer the same “out” language of “or equivalent certification” as the Act and instead mandate LEED NC, with no exception for another standard.

It’s a safe assumption that we’re all in favor of sustainable development and design… even if we weren’t it’s a safe assumption that “green building laws” have a rational basis sufficient to withstand scrutiny with regard to pushing for that sustainable goal. What is unclear is whether state sponsorship of a private entity’s green rating system to the exclusion of other systems can be countenanced where it means that the competing rating systems are adversely affected and could possibly lead to the citizenry being denied the right to express the viewpoint of a comparable “green rating system.”

There are currently not any specific federal standards for the regulation of “green rating systems.”   Private entities advance different methods, systems, goals and ratings which have yet to be either subjected to government oversight and accountability or run through the gamut of consumer protection lawsuits that could shed light on the practices and procedures for making a decision to favor one material over another, one method to an alternative.

While LEED has undoubtedly advanced to the front of the pack with the dominant market share in sustainable building standards, it is still a system run by a private organization that is advancing its method against others. A government’s singular implementation of the LEED system not only excludes other systems from competing for or consideration in government projects (profits are made from the certification process), it may also silence dissent regarding alternative private viewpoints about sustainability. If there is no government or regulated objective standard regarding a green rating system, what and how it must accomplish, why is one private individual’s viewpoint any less valid, or entitled to less consideration than another’s by the state? 

Where is the recourse, outlet, or method for appealing a decision about what is “sustainable” or “green”? Where is access to the public forum for expression of “sustainable” or “green” by other private entities or individuals? 

As we push toward sustainable construction and, hopefully, the eventual state and local regulations enacted after careful study of environmental issues that it will entail, it is best to recognize lessons learned from our past about letting private entities become quasi-state actors or the codification of one viewpoint to the exclusion of another.

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Our friend Gary L. Cole over at Law/Ark previously published the first part of his series involving the emerging issues in Green Design Liability which we blogged about here.

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Gary L. Cole over at Law/Ark has published the first part in what promises to be a multiple-part article on the legal liability issues faced by design professionals and contractors. His piece “The Real Green Goblin – Emerging Legal Liability for Green Design Professionals and Contractors (Part 1)” promises to be interesting and the first installment delivers:

“The purpose of this Law/Ark discussion, which will be presented in several short installments, is to highlight the missteps that design professionals and contractors may make along the green path of good intentions which increase their exposure to later claims of liability when things go wrong – as they often do in construction.”

The article will be worth following as the themes are developed and explained by Mr. Cole. Additionally, while this blog hadn’t been on our radar before, we’ve added a link to it at the right along with the other construction related blogs we recommend.

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