USGBC LEED Class Action Lawsuit Getting Lots of Attention

by Andy Burns on October 26, 2010

I know this won’t be the last we hear about this, but I couldn’t resist making a few comments about this timely lawsuit against the USGBC.  In case you missed the hubbub, you can read Shari Shapiro’s summary and opinion of what’s happening.  In a nutshell, the USGBC is being sued by plaintiff Henry Gifford by way of a class action lawsuit citing that the LEED program is a fraud. Of course, there are all the questions whether or not this will actually be class certified and many opinions out there say it will not.  In an email exchange with my colleagues, Chris VanderWeyden of Code Green Solutions questions the credibility of the plaintiff and concurs that there is no harm done to the plaintiff directly:

Mr. Gifford has made 2 accusations/attacks on USGBC’s rating systems now and they have been effective in raising questions and dialogue. His previous attempt was based on USGBC New Construction buildings who had energy model’s completed that in theory determined how efficiency a building would operate. He claimed these buildings were not meeting their efficiency marks and if anything were using more energy. These theorized energy models take into account typical occupant loads, assumed energy loads, and building conditions. They do not take into account if a building leases out space to a data center, or trading floor, or high-energy using floor. They assume operating hours, and typically the building may also exceed these when the building is actually operated.

With all that said, his claims are against new construction properties, whereas Existing Buildings prove their efficiency through actual data and energy bills.

Legally, his class action lawsuit in my own opinion will not succeed because he has little to no standing to file the suit. Mr. Gifford himself has not been personally injured or affected financially by the USGBC.

Personally speaking, we’ve guided some projects through the LEED certification process and while it does set a standard in building protocols and considerations for improving energy efficiency in buildings, there is also a lot of what could be considered superfluous effort put into getting those “points” you need for that coveted rating prize .  The problem is lots of folks out there think the USGBC is misleading people into believing that the LEED rating system will save energy (and parts of it are aimed at that) – but there are other programs out there that promote efficiencies without the marketing hype of the USGBC.  Our first passive “solar” project was completed in 1979 - well before the LEED rating system was invented.

What we do know is that it can be a significant investment to improve energy efficiency ratings in existing buildings, having just completed one recently that received Silver LEED status. Guidelines are important and the LEED program offers that - a guideline to follow.  It’s by no means the final say or approach.   New projects do not have all the retro-fitting problems, but many of the “green” products and approaches are new, and not always fully proven to work as effectively as promised.   It may be that the entire Green industry need to carefully consider ALL the promises they make - as they certainly will be challenged by those who are unhappy with the outcome at some point.  It will be interesting to see how this plays out.

As I was drafting this blog post, another article about this came by my desk from Greensource.  If nothing else, Gifford is getting lots of attention.  I have to say that I hear lots of grumbling from owners and engineers about the long term value of following the LEED program and process.  I believe energy audits based on the Energy Star program, followed by retro-commissioning for existing buildings, alternative electrical metering devices, etc., may be what most institutional building owners will be looking into for quite a while since new building - especially offices - will be non-existent for the near term.  Agree?

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