Institutions of higher learning around the globe are turning green. They are embracing sustainability for many reasons, some of them economic, some of them because their student body and faculty are requesting it, and some of them just because it is the right thing to do. There is now even a “College Sustainability Report Card” (published by the Sustainable Endowments Institute) which lists those schools that have joined the green bandwagon and demonstrated a commitment to sustainability and is designed to give guidance to those institutions considering going green. But making the decision to become more sustainable is only the first step. Going green (and staying green) may also involve many legal issues with which the college or university never dealt with before.
To understand how to go green, first one should analyze why a college or university may want to become sustainable. For one thing, when a school adopts sustainability practices (such as reducing greenhouse gas emissions, energy and water consumption, using bike-sharing programs or adopting recycling, to name a few), it makes a very strong statement to the world about that institution’s values and, at a minimum, provides positive significance to the school brand. Since colleges and universities compete for the best students from the general applicant pool, this sustainability emphasis could be a deciding factor for them. The Princeton Review's Guide to 311 Green Colleges postulates that “if you choose to attend a school with a commitment to sustainability, the academic, research, and extracurricular opportunities available will put you a step ahead of the competition when it comes to getting one of the green jobs of the future, and make your college experience that much more enjoyable.” And Princeton Review’s Guide is not alone. Other well-known publications have similar listings, such as the Sierra Club Magazine, which lists “Cool Schools.” But there are also other practical reasons for a college or university to go green.
One is to reduce operating expenses (primarily for energy and water consumption) which not only increases the school’s bottom line, but many college administrators are cognizant of the fact that if they reduce the funds needed for these costs, they can re-allocate them for other items. And going green is not just about smaller electric and water bills. Although energy and water expense reductions are important considerations, there are other for adopting sustainable building practices that relate to those who live and work in the institution. For example, when comprehensive sustainable elements are incorporated into a building, there typically will be more natural lighting, a greater exposure of seeing the outdoors, better indoor air quality, green cleaning and pest control, and many of the paints, furniture and carpeting used in the facility will have low volatile organic compounds. All of these relate to its affect on the building's occupants. It is now widely accepted that those who live and work in green buildings are healthier, more productive and happier. So one can see these benefits are just as important (if not more important) than energy and water saving measures.
Other reasons why a college or university may go green is for branding. Harvard University does an excellent job in bragging on its website that “Harvard Thinks Green.” Also, many schools now boast that they will be carbon neutral by a given year. For example, Colgate University pledges to be carbon-neutral by 2019 (its 200th anniversary). Similarly, even membership in some higher education organizations such as The American College & University President’s Climate Commitment, which was developed so that the “signatories of the ACUPCC, and the higher education industry as a whole, are leading society by driving the thought and defining the cutting edge of what is necessary and what is possible in effectively fighting climate change,” afford members bragging rights. One by-product of any of these is to use sustainability measures to attract the cream of the potential student crop. But if there are so many reasons for a college or university to go green, why don't all of them do it?
In many cases, a college or university must answer to its board of trustees when making material decisions about policy and capital expenditures. Dartmouth College Trustees, for example, are granted final authority under the original Charter of Dartmouth College to establish such "ordinances, order, and laws as may tend to the good and wholesome government" of the college.
Facilities professionals who help run the institution and the other administrative directors for each of the school's academic departments are stakeholders as well. Although getting everyone on board can be challenging for any project involving some of a school’s physical plant, when it can affect the entire campus, it is more so. Scope of the work is an issue too. There are sustainable modifications which cause minimal disturbance to others (for example, retrofitting lighting can typically take place over a matter of days and not require any temporary staff relocation), or a retrofit could be a source for extensive interruption of activities, which might encompass everything from school-wide administrative functions, departmental inconvenience, classroom scheduling, etc. So how does a college or university begin the sustainability journey?
The first part of the process usually involves forming a team to process how extensive the sustainability improvements will or could be. Deciding how much to do and in what timeframe could involve many parties (even those who will not be directly affected by such work) and take a long time to come to a consensus. Next comes the money folks who will need to decide from which pot the capital investment will come. In some cases there may already be a line-item in the institution's budget for greening measures and, in others, it will come from gifts specifically earmarked for sustainability. It is not uncommon for a school to have a sustainability fund drive. Figuring out how the institution will pay for the sustainability measures is only one of the many puzzle pieces. Attorneys usually have to be involved from the start as well.
Since the greening process involves contractors, design professionals, suppliers of products and services, and others, there are numerous contracts which will need to be negotiated, drafted, and executed. Among the many decisions that have to be made to go green (or at least a shade of green), the college or university may also seek certification of a building or buildings that are becoming sustainable (either ground-up projects or existing building retrofits) which adds an additional layer to the now already complex list of required activities. So the number of contracts which will get a school from point A to point B is staggering, and if those agreements are not explicit in requiring accountability, reporting and performance of an end-product that is sufficiently green, failure to obtain the benefit of the bargain is only a part of the loss for the institution.
For example, if the college or university has a fund drive for sustainability measures and a charitable donor specifies an exact use to be made of their gift that is never realized, major issues for the school could result. Imagine a donor requiring that her $10 million contribution to the university or college has to be used specifically for retrofitting existing buildings with wind turbines and to obtain Leadership in Energy and Environmental Design (“LEED”) certification for them. If the properties do not obtain the certification required, what happens to the funds earmarked for the retrofit? There are numerous examples of negative monetary repercussions to institutions that fail to deliver when a donor makes a planned or restricted gift. In his insightful article, “Perfecting Donor Intent on Gifts to Charity—The Gift Agreement,” Eric A. Manterfield comments that litigation can easily result if a college or university does not use earmarked gift funds for the purpose or purposes for which they were given.
(To better understand this legal predicament, this case study describes what could happen when a sustainability plan goes awry.)
So where does this leave us? To start with, careful planning of sustainability measures is a must. When a college or university’s leadership wants to implement green changes, it must do so under the typical higher education bureaucratic platform. All stakeholders have to be on board from the beginning, and for most schools, this includes numerous parties, including their counsel. The scope of work will also need to be fleshed out early on (subject to typical multi-stakeholder modifications), so that when a plan is firmed up, the parties implementing the greening process will be able to do their jobs successfully. The engineers and architects will need to draft the plans, the contractors will bid on those plans and build the project, and the renewable energy device dealers and manufacturers will deliver and install their products. Although the benefits of becoming sustainable far outweigh the burdens, the institution leaders need to minimize all potential obstacles and be realistic in their expectations. Liability for all parties involved should also be discussed and memorialized in the many agreements prior to the commencement of the job. Sustainability is here to stay and most schools will be adopters of some form of it. It just needs to be planned for appropriately.