Harvey Berman: Federal lawsuit attacks LEED building rating system

In sum, LEED is the “king of the hill” for now when it comes to U.S. rating systems.

However, LEED’s success is subjecting the system to intense scrutiny in the high stakes world of green design and contracting where there are many different opinions as to what is a green building and how to measure the sustainability of a building.

Enter Henry Gifford and Gifford Fuel Saving Inc. In October, Gifford filed a federal lawsuit against the USGBC and several of its directors seeking class action status.

At the heart of the 24-page complaint are claims by Gifford that the USGBC has deceived consumers and others by misrepresenting the benefits of LEED certification relating to energy efficiency and savings and attributes of the LEED rating system.

Some of Gifford’s criticisms of LEED include that it:

• is not based on objective scientific criteria.
• is not based on actual building performance data but rather on projected energy use.
• does not require verification of data submitted in certification applications and does not require actual energy use data.
• is not based on actual measurements but rather computer modeling of anticipated energy use levels.

Other Gifford slams include that the USGBC does not have sufficient staff to evaluate applications for certification and that the USGBC has misrepresented to the public that LEED buildings perform 25-30 percent better than non-LEED buildings based on a USGBC initiated study by the New Buildings Institute that Gifford claims is flawed.

Gifford claims that the marketplace, consumers, the environment and skilled professionals like themselves with years of experience making safe, comfortable and energy-efficient environments are being harmed by LEED’s alleged misconduct.

Gifford is asking the court to certify a class of plaintiffs consisting generally of persons who paid for LEED certification of buildings but allegedly did not get buildings that achieved promised benefits, persons who design energy-efficient buildings and whose livelihood has been affected by LEED’s claimed monopolization of the market and fraud, taxpayers whose municipal tax dollars are spent on the cost of LEED certification in publicly-commissioned buildings and trades that plaintiffs say lose money because of additional time to comply with LEED.

Whether Gifford’s lawsuit will be successful is debatable — and certainly it will be a long hard climb for the plaintiffs. However, if the Gifford lawsuit follows the course of other litigation, it will likely generate the discovery of a lot of information relating to LEED, which is likely to foster more debate as to the value, meaning and efficacy of LEED and other green building rating systems.

The Gifford lawsuit and other attacks on LEED that have occurred in the past two years indicate the growing importance that the public places on sustainability. They also shine a spotlight on the tremendous tug-of-war that is currently going on as to “what is green,” “how green does a building have to be to be green” and “what constitutes an effective method for promoting energy efficiency.”

While the “green” debate has value, the Gifford lawsuit and other such attacks may also chill efforts to promote sustainability. Stay tuned as we bring you updates on this controversy.