Green Building Litigation Update: Destiny USA v. Citigroup

This article originally appeared in Focus On Construction/Infrastructure - November 2010

In the Canadian Construction industry, we often refer to the American litigation experience to identify potential project risks which merit attention in contract drafting and project administration. With the recent trend in Canada towards the development of green projects, we continue to monitor how the courts are dealing with the unique risks of green building projects.

A recent U.S. court case is of some interest, not because it identifies new risks, but since it highlights how the courts may approach green projects generally.

In Destiny USA v. Citigroup,¹ a New York appellate court upheld a lower court decision which found that the green elements of a project made it so unique that the developer of the project would incur irreparable harm if the project's lender was not ordered by the court to continue funding the project.