Federal lawsuit attacks LEED building rating system
Formed in 1993, the United States Green Building Council (USGBC) created the LEED building rating system which provides a multi-faceted and comprehensive system for designing constructing and incorporating sustainability in certain types of buildings.
LEED has undergone several major revisions and is constantly evolving with the input of a wide range of industry stakeholders. While there are other systems for rating buildings, in the U.S., there has been widespread acceptance of the voluntary LEED rating system and the number of LEED certified buildings and LEED accredited professionals has grown exponentially.
As of the date of this article, more than 6,000 non-residential buildings have received LEED certification, more than 4,000 homes have received LEED certification and more than 143,000 persons have achieved the status of LEED Accredited Professional. In Michigan, more than 3,000 persons have attained some type of LEED AP status.
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.
Harvey Berman, a LEED Accredited Professional, is a partner at the law firm of Bodman LLP practicing in its Ann Arbor office. He is chair of the firm's Construction Practice Group and represents clients in construction, real estate, and business matters. Contact him at 734-930-2493 or at hberman@bodmanllp.com.
Comments
David Briegel
Fri, Dec 3, 2010 : 9:20 a.m.
Developing every single piece of property in the County for every yuppie wishing to escape the city is the biggest energy waster of all. Good for the gas, oil and auto industries yet terrible for the environment! I laugh at the traffic jams every morning and evening as the SUV's clog those narrow dirt roads and the funnel points along their way as their "occupation army" is assembled! How that house sits in the cleared forest next to the former corn field, now named Oak-Maple Valley Acres makes no improvement over that simple fact. And how energy efficient is a 8-10 thousand square foot McMansion?
BobbyJohn
Thu, Dec 2, 2010 : 5:13 p.m.
Perhaps LEED certification is better than nothing, but a stick in the eye is also better than a stake in the heart. We need a well thought out energy efficient and sustainable plan for building. Something that takes into account the cost effectiveness of the part of the building being planned. In real life, LEED is used more as a sales gimmick than anything else. If Gifford's motives are pure, kudos to them!
DonBee
Thu, Dec 2, 2010 : 3:22 p.m.
My problem with LEED is it is not a pure Energy Efficiency standard for buildings. Rather it mixes: (1) the site and how well the building fits on the site (2) the sensitivity of the building to the environment [e.g. is there a wetland on the site or large trees] (3) Connectiton to mass transit (4) Water usage (5) Design Innovation (6) Energy Efficiency (7) Other factors - like using bamboo for floors Yet LEED is pushed as energy efficiency to the general public. It is at best a misleading marketing campaign. LEED needs to be redone with two or three parts, so that there is a part purely for energy efficiency. A building could be a wonderfully energy efficient design and end up not getting certified because it spoils a site and bulldozes trees and wetlands. It could also be a poor building for energy efficiency and still get certified because it does a wonderful job on the other factors. While I agree with Mr. Martel it is better than nothing, you need to see the score sheet for a building to see how it scored in each category before you decide that LEED means what you think it does for a specific building. Unfortunately, for energy efficiency the certification is mostly based on models and self certification, so buyer beware.
Bob Martel
Thu, Dec 2, 2010 : 10:22 a.m.
One aspect of LEED design that I always found problematic was that it does not necessarily encourage energy efficient design, but rather, it seeks to promote an energy efficient implementation of what could very well be a terribly energy inefficient design. For example, LEED does not discourage a lot of glass in a building exterior envelope (which is a terrible energy waster in terms of heat loss in winter and possibly heart gain in the summer) but will tell you to use triple pane glass. Meanwhile, a 50% reduction in the amount of glass could very well save more energy than all the triple pane glass in the world! Still, LEED is what we have now and it is certainly better than nothing. It is a shame that someone would use the courts to try and promote his own special agenda, but I guess that we should not be surprised at that.