Federal Lawsuit Against LEED Rating System & U.S. Green Building Council

[Dover]

A federal lawsuit filed in October 2010 against the U.S. Green Building Council (USGBC) and other defendants, focusing on allegedly fraudulent claims of the LEED rating system, has been amended. Filed February 7th, 2011, the amended complaint has been boiled down to a claim of false advertising, and is no longer a class-action suit.

As with the original lawsuit (see “USGBC, LEED Targeted by Class-Action Suit,” EBN Oct. 2010), the amended version focuses on a critique by Henry Gifford, a mechanical systems consultant, that USGBC falsely claims that LEED guarantees energy savings in LEED-certified buildings.

Harm to non-LEED APs

Instead of seeking to establish a broad class-action lawsuit representing building owners, taxpayers, and professionals harmed by LEED, the amended lawsuit focuses on the latter. It claims that Gifford and other professionals are, in the words of the complaint, “losing customers because USGBC's false advertisements mislead the consumer into believing that obtaining LEED certification incorporates construction techniques that achieve energy-efficiency.” The suit seeks an injunction and damages against USGBC.

Instead of seeking to form a class of plaintiffs harmed by LEED, Gifford brought on three other professionals to the complaint: an architect and two engineers. Other defendants named in the original suit, including Rick Fedrizzi, David Gottfried, and Rob Watson, all associated with the founding of LEED, have been removed. ...cont'd

http://www.buildinggreen.com/auth/article.cfm/2011/2/8/New-Plaintiffs-Join-Amended-LEED-Lawsuit-Gifford-USGBC-AP?utm_source=BuildingGreen.com+Bulletin&utm_campaign=c8fa11cedc-News_Alert_New_Plaintiffs_NM2_8_2011&utm_medium=email&mc_cid=c8fa11cedc&mc_eid=6612921fc6




This graph from the New Buildings Institute study critiqued by Henry Gifford shows how the actual energy use of LEED buildings compares to the national average values for the same building type—although only the office category has enough buildings to represent a reliable sample.

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1. Lots of interesting issues here.

In our neighborhood, there is a pattern of developers and builders advertising LEED certification for their projects before the project is even begun. In other words, they use LEED certification as a selling point for investors and future buyers. But the fact is, nobody can guarantee LEED certification until after the project is finished, even with the best of intentions.

We have had developers successfully sell projects to local governments with this "guarantee" built into the permitting process as a legal condition for approval of the project. Local boards are so ignorant about the LEED certification process that they don't understand what they're dealing with. When used this way, it just functions as layer of smoke and mirrors to confuse local planning boards.

Technically, these are fraudulent claims on the part of the developers, not USGBC, but we haven't seen USGBC make any pro-active attempts to keep this from happening.

We have certainly observed the growth of a whole cadre of people who have expertise in LEED, but not necessarily in the underlying disciplines of engineering/architecture. The Architect I work with solved this by becoming LEED accredited himself, (after 35 years of practice). It was not difficult to get certified. Although he is now well-versed in the process, and can advertise himself as a LEED AP, he has a very low regard for LEED and feels it is an impediment to intelligent design and construction of environmentally sound buildings.

I don't know what I think about the actual lawsuit. Given how easy it is to get the LEED accreditation for yourself and/or your staff, they may not have much of an argument. From our experience, the largely non-rational hyper-bureaucratic mindset of the LEED process may be much more damaging to the professions.