This article was written for the AGC’s Law in Brief and first appeared here.

Sustainability is no longer optional. What was once a matter of public policy or corporate preference has become a regulatory mandate and is reshaping how construction projects are designed, built, and operated. This mandate is not solely figurative. Rather, states have started to follow Europe’s lead by beginning to codify sustainability requirements into regulations and law. California led the charge by adding mandatory embodied-carbon emissions regulations into CALGreen, and other states, such as New York, have introduced bills to implement similar requirements. Owners, designers, and builders must now treat sustainability not as aspirational, but as a clearly defined contract issue from the outset, particularly where the project is expected to achieve a third-party rating, meet energy or resiliency targets, qualify for incentives, or comply with evolving green building codes.

In the federal public sector, construction contracts include a layered compliance framework—executive order-inspired policy, FAR-mandated clauses, and enduring statutory requirements—requiring contractors to integrate sustainability into design, material selection, and lifecycle management. Staying ahead means aligning with regulatory standards, conducting life-cycle cost analyses, and embedding sustainability into every procurement and construction decision.

What contracting method is well suited to help owners achieve these sustainability objectives? Design-build (“DB”). Unlike traditional design-bid-build contracting, DB delivers both design and construction within a single contractual framework, creating the integration necessary for effective sustainability outcomes. This article is the first of a four-part series that discusses sustainability and the use of DB contracting. Part I provides a brief history of how sustainability plays into construction and the legal landscape surrounding sustainability in construction, and why it matters. Future articles will provide a practical framework for understanding how sustainability objectives should be identified, allocated, and managed in DB contracts, including those in both the private and public sector, as well as recommendations on how to negotiate DB contracts as they relate to sustainability.

Sustainability – An Awakening

On June 22, 1969, the Cuyahoga River in Cleveland, Ohio’s manufacturing district caught fire, which had occurred at least a dozen times over the previous 100 years. The 1969 fire, however, became both a symbol of the environmental costs of unregulated industry and the catalyst of increased environmental awareness, activism, and congressional action.[1]

While Congress had already begun efforts to make the nation’s water and air cleaner,[2] the 1969 Cuyahoga fire triggered more vigorous Congressional action, including passage of the National Environmental Policy Act, effective January 1, 1970, and the establishment of the Environmental Protection Agency (“EPA”), followed by amendments to the Clean Air Act (1970,1977), the Clean Water Act (1972), and the Resource Conservation and Recovery Act (1976).[3]

Since the 1970s, regulation and oversight of the environmental impacts from industry and commerce have proliferated, and regulation focused on reducing environmental impacts and improving project environmental outcomes have entered the construction space.

Sustainability for the Built Environment

Sustainability focuses on “meeting the needs of the present without compromising the ability of future generations to meet their own needs.”[4] “To pursue sustainability is to create and maintain the conditions under which humans and nature can exist in productive harmony to support present and future generations.”[5]

Recent estimates indicate that the construction industry generates approximately forty percent of the world’s energy and process-related carbon emissions.[6] This brings construction to the forefront of global sustainability objectives.

Sustainable construction requires a life-cycle approach to building projects and a cradle-to-grave evaluation of material sources and energy use, including building use after construction. Owners, design professionals, contractors, and building operators achieve sustainability by minimizing deleterious impacts of site selection, construction and use, choosing environmentally responsible practices and efficiently managing natural resources throughout the project’s life cycle. Key performance outcomes for sustainable construction include environmental preservation and restoration, economic benefits, health benefits, and quality of life improvements.

The Rise of Third-Party Assessment Systems

How does a developer implement improved practices and measure whether the desired outcomes are met? Third-party assessments provide systematic, category-based, measurable steps to improve the sustainability of projects. The tools and metrics outlined below are well-accepted third-party assessments.

The U.S. Green Building Council (“USGBC”) became the predominant driver for sustainable construction metrics through its Leadership in Energy and Environmental Design (“LEED”) rating system. The USGBC was founded in 1993,[7] when few resources were available for assessing building sustainability. The USGBC released the LEED certification program in 1998 and regularly updates the program, most recently bringing LEEDv5 online in 2026.

The Green Globes certification developed in Canada when the Canadian Standards Association adapted the Building Research Establishment’s Environmental Assessment Method (BREEAM), a British assessment system, for use in North America.[8] The U.S. version was released in 2004. Green Globes evaluates sustainability, health, wellness and other factors for commercial real estate through a third-party assessment process. It is a simple, user-friendly tool that is continually refined by experts. American National Standards Institute (“ANSI”) subsidiary, The Green Building Initiative, administers Green Globes.[9]

In 2013, the U.S. General Services Administration (“GSA”) chose LEED and Green Globes to certify government buildings. LEED has remained widely used for federal and public-sector building projects.[10]

In 2010, the Institute for Sustainable Infrastructure (“ISI”) released its ENVISION Framework to assess sustainability for infrastructure projects. ENVISION is a ranking system based on a survey of the materials, building practices, and initiatives taken by project owners, designers, and builders.

Incorporation of Sustainable Construction into Laws and Regulations

In 2009, the International Code Council and industry organizations developed a model code for sustainable construction in commercial buildings, titled the “International Green Construction Code” (“IgCC”).[11] The IgCC weaves sustainability practices into building regulations. The IgCC has been adopted by thirteen states, the District of Columbia, GSA, and U.S. Department of Defense.[12] In addition, the Federal Acquisition Regulation (“FAR”) imposes sustainability requirements on nearly all federal contracts for any federal agency.[13] Locally, municipal governments incorporate the IgCC and other sustainability measures into their codes.

In many U.S. communities, project stakeholders still control whether to use sustainable practices in building and infrastructure. Increasing numbers of owners and designers are beginning to incorporate sustainable construction in their projects. ConsensusDocs and the American Institute of Architects (“AIA”) forms have evolved to facilitate sustainability. ConsensusDocs 310 provides a sustainability addendum adaptable to any project delivery method contract. The AIA E204-2017 “Sustainable Projects Exhibit” accompanies the Owner-Architect contract (AIA B101) and must be included in all related contracts when the owner chooses a Sustainable Objective for the project. Developers must understand how to implement sustainability in their contracts and engage competent construction attorneys to incorporate sustainability requirements and incentives into their projects.

Achieving Sustainability Through Design-Build Contracting

In the past decade, there has been a significant shift from the historic design-bid-build approach to contracting for construction projects to DB. Through this shift in contracting methods, the owner gains an enhanced ability to implement its sustainability goals.

Sustainable construction encompasses far more than building quality. When thoughtfully incorporated from the outset, sustainable construction reduces construction and life-cycle costs and waste, maintains or improves the natural environment, and provides healthy places to live and work for the occupants of the finished project. Sustainable construction also presents technical challenges and opportunities for designers and contractors to earn accolades through third-party accreditation systems and industry groups. These and other benefits make sustainable construction attractive to owners, designers, contractors, and the public at large.

Sustainability can integrate seamlessly with DB throughout the entire design and construction process.[14] Because DB project delivery is managed through a single contract between the owner and the design-builder, construction and design progress together. This allows a continuous feedback loop between the construction side and the design side to optimize constructability. This feedback loop is key to implementing effective sustainability outcomes. Consolidated design and construction leadership for DB projects promotes a unified vision, streamlined decisions, and better implementation of sustainable principles and goals, avoiding the all-too-often adversarial conflict occurring in design-bid-build contracting, which may hamper sustainability decisions.[15]

Contracts for sustainable DB projects should maximize DB collaboration to establish a sustainable objective and foster a sustainability plan which the DB team can use to guide decisions for the project. ConsensusDocs 310 and AIA E204 provide a solid contractual framework for implementing sustainability. DB partners should work closely with counsel to understand team roles, the impact of relevant sustainability requirements (whether self-imposed, owner-imposed, or regulatory), and the consequences of breaching those obligations.

Conclusion

As sustainability requirements continue to shift from aspirational project goals to enforceable regulatory, procurement, and contractual obligations, contractors should begin building out their compliance frameworks now rather than waiting until those requirements appear in a solicitation or contract. Contractors that proactively evaluate sustainability options, understand applicable rating systems and code requirements, and develop internal processes for documenting compliance will be better positioned to manage risk, compete for public and private work, and deliver successful design-build projects.

Stay tuned for Part II.

[1] See Lorraine Boissoneault, The Cuyahoga River Caught Fire at Least a Dozen Times, but No One Cared until 1969, Smithsonian Magazine (June 19, 2019), https://www.smithsonianmag.com/history/cuyahoga-river-caught-fire-least-dozen-times-no-one-cared-until-1969-180972444/.

[2] See Federal Water Pollution Control Act of 1948, 33 U.S.C. § 1251 et seq.; Clean Air Act of 1963, 42 U.S.C. § 7401 et seq.; Solid Waste Disposal Act of 1965, 42 U.S.C. § 3251 et seq. (repealed).

[3] See The Origins of the EPA, https://www.epa.gov/history/origins-epa (last visited May 12, 2026); Clean Air Act Requirements and History, EPA, https://www.epa.gov/clean-air-act-overview/clean-air-act-requirements-and-history (last visited May 12, 2026); History of the Clean Water Act, EPA, https://www.epa.gov/laws-regulations/history-clean-water-act (last visited May 12, 2026); History of the Resource Conservation and Recovery Act (RCRA), EPA, https://www.epa.gov/rcra/history-resource-conservation-and-recovery-act-rcra (last visited May 12, 2026).

[4] Sustainability, United Nations (quoting the 1987 United Nations Brundtland Commission), https://www.un.org/en/academic-impact/sustainability (last visited May 12, 2026).

[5] Learn About Sustainability, EPA, https://www.epa.gov/sustainability/learn-about-sustainability (last visited May 12, 2026).

[6] See What is a Sustainable Built Environment?, World Green Bldg. Council (citing Olubukola Tokede et al., Harmonising Life Cycle Sustainability Thinking in Material Substitution for Buildings, 185 Resources, Conservation and Recycling art. 106468 (Oct. 2022)), https://worldgbc.org/what-is-a-sustainable-built-environment/ (last visited May 12,2026).

[7] U.S. Green Building Council (USGBC), Library of Congress, https://www.loc.gov/item/lcwaN0017023/ (last visited May 12,2026).

[8] Chris Nickel, Drake University presentation handout, 2018 (available at https://www.iisc.org/filesimages/PDC/2018/Handouts/6E-%20Certifying%20the%20Green-ness%20of%20your%20Facility%20-%20Chris%20Nickel.pdf).

[9] Green Globes, Green Building Alliance, https://www.gba.org/resources/project-and-product-certifications/green-globes/ (last visited May 12, 2026).

[10] Karen Clay et al., Does Leed Certification Save Energy? Evidence from Retrofitted Federal Buildings, National Bureau of Economic Research, p. 1, (March 2021, rev. Aug. 2023) https://www.nber.org/papers/w28612.

[11] See Green building code introduced,  Consulting-Specifying Engineer (March 13, 2010), https://www.csemag.com/green-building-code-introduced/; John Schneidawind, The International Green Construction Code Promises to Change the Way We Build, Architect Magazine (January 26, 2011), https://www.architectmagazine.com/aia-architect/aiafeature/the-international-green-construction-code-promises-to-change-the-way-we-build_o.

[12] Adopting the IgCC, Int’l Code Council, https://www.iccsafe.org/products-and-services/i-codes/igcc/ (last visited May 12, 2026).

[13] See FAR Sustainability Rules: 2025 Amendments Explained, GSA Focus, https://www.gsascheduleservices.com/blog/far-sustainability-rules-amendments-explained/ (last visited May 12, 2026).

[14] Kevin Row, Sustainable Design-Build Construction: Integrating Eco-Friendly Practices for a Greener Future, Civil Digital (Aug. 31, 2024), https://civildigital.com/sustainable-design-build-construction-integrating-eco-friendly-practices-for-a-greener-future/.

[15] See id.