Climate change clauses for construction contracts

By David Brown, Partner, Construction, CooperBurnett LLP

The Construction Engineering sector scale and industrial character means that it has a huge environmental impact. According to one United Nations report, globally ‘the buildings and construction sector counts as 36% of final energy use and 39% of energy and process related carbon dioxide (CO2) emissions in 2018’.

The situation has not improved and the buildings and construction sector is not on track to achieve decarbonisation by 2050. The key areas for tackling climate change in the construction industry include the selection and use of materials; and the energy use of the completed building once it is occupied.

There is little solid information on the type of climate change obligation that is most commonly found in a construction contract. One exception is a case study published by The Chancery Lane Project (TCLP), which is the world’s largest network of law firms and lawyers working together to provide climate clauses for contracts.

In June 2023, TCLP published two new climate clauses for use in the construction industry:

• Tessa’s Clause (Sustainability Enterprise Delivery Measures within Construction Works Task Orders).

• Daniel’s Clause (Sustainability Key Performance Indicators in Construction Works Task Orders).

Each clause is drafted for use with the NEC4 suite of contracts. The guidance notes accompanying Tessa’s clause suggest that they

“Under this contract, we provided much-needed vocational forklift and road maintenance training to over 300 jobseekers within Swale, Kent and Medway each year, most of whom went on to secure employment. We have successfully operated this provision for over ten years, and it is with great sadness that we now need to make fourteen much-valued colleagues redundant.

What makes the news so surprising is that Ofsted was particularly impressed by the work we did with local jobseekers and the opportunities that our training provided to help our learners gain employment.” https://recruitandtrain.com/ may lead to performance related incentive payments, whilst both sets of guidance notes envisage a contractual regime in which the client can engage third parties to fulfil unmet criteria and reclaim the costs of doing so from the contractor. However, neither clause includes drafting to implement such a regime.

Mainstream Training started trading in 1997 and has a team of over 120 which includes around 65 highly skilled instructors.

For further information visit: www.cooperburnett.com

This article is not intended as legal advice that can be relied upon and CooperBurnett LLP does not accept any responsibility for the accuracy of its contents.

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