LEED-ing Lawsuit

From the sound of the court documents, Henry Gifford is a man on a mission.

 Gifford, an energy savings consultant with Fuel Saving Inc. is the lead plaintiff in a massive lawsuit that takes aim at the U.S. Green Building Council’s (USGBC’s) Leadership in Energy and Environmental Design (LEED) certification system (see related story.)

 In court documents filed last week in a U.S. District Court in New York, Gifford and his co-plaintiffs allege that USGBC’s advertisements that buildings certified under its LEED program “are, on average, performing 25-30% better than non-LEED certified buildings in terms of energy use:” is false. The complaint further alleges the Council’s claim that LEED provides third-party verification that a building was designed and built with energy savings as a falsehood as well.

 Gifford’s complaint contends that there is “no objective empirical support for the claim that LEED buildings use less energy” and that “LEED does not verify that certified buildings are designed and built in a manner that leads to energy savings.” “The LEED rating is not based on objective scientific criteria … but rather on computer modeling or anticipated energy use level,” the complaint states.

 The suit alleges that USGBC’s advertising misleads consumers and damages the plaintiffs by diverting customers from them to professionals accredited by USGBC and related parties.

 The suit alleges that USGBC has a large financial incentive to encourage LEED certification of buildings. “Although USGBC may technically have 501c(3) status*, it is a big business and, in 2008, reported revenues of $64 million, ” says the complaint which also says that USGBC’s Green Building Certification Institute (GBCI), took in $18.7 million during the same time period. BCI develops and administers the professional certification exam. It cites a minimum LEED certification fee as $2,900 with buildings over 50,000 square feet paying four cents per square foot plus, membership fees plus an initial $900 registration fee.

 Gifford also contends that USGBC concealed its sponsorship of a March 2008 New Buildings Institute (NBI) study that was cited in its April 3, 2008 press release. He claims the study’s assertions that LEED buildings use less energy than non-LEED buildings are false for several reasons and that USGBC claims of independent third-party verification are also not true. “There is no verification of the applications submitted for LEED certification; certification does not require actual energy use data; and USGBC does not have the staff or expertise to evaluate these applications,” says the court filing.

 The end result, according to Gifford, is that the advertising camping has injured the public who “not only … suffer in many cases by actually using more energy rather than less, but they will have to spend thousands of dollars on LEED certification they believed would help them use less energy,” claims the complaint.

So what do Gifford and his group want? They request, among other things, that the court issue a permanent injunction ordering USGBC to stop advertising that LEED buildings use less energy than non-LEED certified buildings or that LEED certification is verification that the building was built according to plans.

 They also ask for all the profit USBGC has derived from the “unlawful acts,” damages, monies to correct the false and misleading statements, costs and attorneys’ fees; additional damages to punish USGBC, interest and any other relief the Court may deem appropriate.

USGBC will soon file a response. We will keep you informed.

 *Editor’s note: IRS tax code designation for a not-for-profit group.

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