A $100 million lawsuit takes a serious swipe at LEED®.

It’s safe to say that the most eye-catching news of the month came in the form of a $100 million class action lawsuit filed in New York against the U.S. Green Building Council (USGBC) and others. The plaintiffs, Henry Gifford of Gifford Fuel Savings and Vince Bailey, are claiming monopolization through fraud, false advertising, deceptive trade practices, wire fraud (with a racketeering element), and more.

I’m no lawyer - I don’t even play one on TV - but I’ve tried to make my way through the 26-page filing to give you a sense of the claim here.

Regarding the particular damage suffered by the plaintiffs, they allege that the USGBC’s promotion of its accredited professionals is fraudulent, and that the use of said people instead of “skilled professionals, such as the Plaintiffs,” leads to damage to consumers, the marketplace, and the environment.

Expanding that to the “class action” part, the listed other putative plaintiffs include people who have paid for LEED® certification for property, everyone who designs energy-efficient buildings whose business has been damaged by “USGBC’s monopolization of the market” through said marketing, and taxpayers whose tax dollars have gone toward LEED certification in publicly commissioned buildings.

The suit does specifically name Rob Watson, a former director at the NRDC, as the creator of the LEED system. Complaints include that “the LEED rating system is not based on objective scientific criteria, e.g., BTUs of energy consumer per square foot per year,” and that the system is “not based on actual measurements but rather on computer modeling of anticipated energy use levels of a building’s performance” in several different areas.

Later in the document, the plaintiffs claim fraudulent misrepresentation from the USGBC in that it “does not conduct site investigations of the buildings it certifies, nor does LEED require buildings to actually perform as promised as a condition of certification. In short, LEED certification is not what USGBC leads the consumer to believe it is.”

A primary target of this document is a March 2008 survey commissioned by the USGBC and performed by New Buildings Institute, and the resulting claim that LEED-certified buildings “perform 25-30% better than non-LEED certified buildings.”

On this subject, the plaintiffs accuse the USGBC of “factually misleading the consumer” by omitting details about how the survey was conducted. Part of the complaint about the survey alleges that an unsuitably small sample of buildings was solicited, and that then only certain entries from that sample were used to go toward the aforementioned claim.

In the end, the gentlemen want to prevent USGBC from making that claim anymore, from calling itself “leaders in energy,” and compensation for their legal expenses. Oh, yeah, and the $100 million.

I suspect the USGBC will take odds with the plaintiffs’ characterization of what the average consumer believes LEED is, along with other aspects of these accusations, if it gets to the jury trial being requested. However, while this is the most drastic manifestation of displeasure with LEED as it stands currently, I know there is opinion within the engineering community that the program is flawed in one way or another.

Whether this particular set of claims win their day in court, and whether doing so would ultimately be productive for the buildings industry (and the people who own and inhabit those buildings), remains to be seen.

A CAPITAL IDEA

Quickly, a save-the-date notice: Our next conference will take place next September 13-14, at the Westin Tysons Corner in Falls Church, VA. That’s located near Washington, conveniently equidistant between Dulles and Reagan National airports and just down the street from the well-known Tysons Corner shopping/dining/recreation corridor.

At this year’s event in Illinois, we had greater feedback than ever from attendees that we are tackling the right range of topics that our audience needs to embrace and explore for success. Thus, we’ll be hosting (and naming) Engineered Systems High-Performance Buildings to better reflect the full spectrum of ideas in play. It will feature a packed two days of discussions and networking, spread over two tracks. More on the format, topic, and other benefits to come, but for now, put it on the calendar. ES

Save The Date

Engineered Systems
High-Performance Buildings
September 13-14, 2011

Engineered Systems &  Building Intelligence Group
Falls Church, VA

Industry Events
NOVEMBER 17-19

GreenBuild Conference & Expo
U.S. Green Building Council
Chicago. For info, visit
www.greenbuildexpo.org.

2O11
JAN. 29 – FEB. 2

ASHRAE 2011 Winter Conference
Las Vegas. For info, visit
www.ashrae.com.

JAN. 31 – FEB. 2

2011 AHR Expo
International Exposition Co.
Las Vegas. For info, visit
www.ahrexpo.com.