Case Against USGBC Dismissed ‘With Prejudice’

Straw House, sustainable building design

The United States District Court in New York City has dismissed a suit filed against the U.S. Green Building Council, or USGBC, the nonprofit agency dedicated to sustainable buildings which developed the LEED (Leadership in Energy and Environmental Design) model of evaluation for “green” construction and retrofitting.

The lawsuit, brought by New York resident Henry Gifford and others who support his stance, was filed in October of 2010, and charged that the USGBC was guilty of false federal advertising claims for representing its LEED system as a proven solution often used to transform the energy efficiency quotient of the ‘built environment’ (the terminology is that of Rick Fedrizzi, president, CEO and founding chair of the USGBC).  

Gifford is not a LEED professional. In fact, he is not even an engineer, but simply a mechanical systems specialist. And while associates and acquaintances in the energy efficiency marketplace acknowledge his technical know-how, others are quick to point out that his filing the suit largely on the energy-use expectations of individual buildings was both premature and shortsighted, especially since LEED standards cover a lot more than energy efficiency.

The Court’s action prevents any appeal or any future suit based on the claims contained in the original suit. The green building sector was united in its cheer of approval, not least the LEED APs, or Accredited Professionals, who are daily instrumental in insuring that LEED paradigms for sustainable design and construction are adhered to in both the residential and commercial building sectors. 

According to at least one of these APs, the Court clearly saw the failure of the lawsuit in addressing the entire scope of LEED certification, which covers eight different categories from energy efficiency to indoor air quality. Gifford et al filed on the basis that the USGBC “had engaged in deceptive trade practices, false advertising and anti-trust in promoting the LEED certification program.”

Gifford, who owns and operates Gifford Fuel Saving Inc. (heating system repair and maintenance) and a website dedicated to “common sense” approaches to building construction, cites data that demonstrates LEED-rated buildings using 29 percent more energy.

Dave Low, of Kidder Matthews Sustainability Practices Group, is a LEED AP. In response to EnergyBoom’s query about the suit, Low observed that – while some of the underlying reasons behind the case made sense (since a previous version of LEED did not put enough emphasis on energy reduction) – the case itself did nothing for the green building community and was not the best way to address the issue. Low, in fact, expects the LEED program to go through several, increasingly effective, evolutions in its quest for the optimum in energy efficiency.

Brian Ebel, another LEED AP real estate professional in the Dallas/Fort Worth area in Texas, responded in a similar vein, observing that the case, while making some good points about energy efficiency under the LEED umbrella, “seems frivolous at best”.

“There are many criteria for LEED, and energy consumption is just one. For example, Energy Star has been around for a while and it’s a great energy rating system. No one is stopping anyone from using LEED in addition to Energy Star or any other criteria.”

Using a residential fresh-air exchange model as his starting point, Ebel described a system to reheat or re-cool outside air, then added: “At the same time, I could create an underground pod with no air exchanges and no windows and it would be very energy efficient and I'm sure that Gifford would want to live there.” This last observation clearly offered tongue-in-cheek.

To further his point, Ebel also cited PassiveHouse (Passivhaus; PHIUS) designs, which originated in Germany, and emphasized that it was as a result of all these new building design paradigms that U.S. customers could now buy Forest Stewardship Council (FSC) certified building lumber and hardwood, HEPA air filters, LED lights, and low-VOC (volatile organic compound) paints and stains.  

“LEED should be congratulated for singlehandedly creating a green building culture that is the envy of every single architect and engineer, since it usually results in the nicest buildings in the city. The lowly 'scientists' have created something worthy and got it to sell. I bet LEED 4.0 will have even stricter energy efficiency standards. It's called the big picture, and that is what LEED was designed for.”