USGBC sued for false advertising about LEED

A New York building energy consultant and three other plaintiffs charged that the USGBC exaggerates its claims of LEED’s energy efficiency.

Source: Pepper Hamilton LLP

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Henry Gifford, a New York City building energy consultant, caused a stir last October when he filed a class-action lawsuit against the U.S. Green Building Council (USGBC) claiming that the USGBC lied, engaged in false advertising, and participated in racketeering activities.   

In a change of tactics this February, Gifford amended the lawsuit by dropping some of these complaints and adding three individual plaintiffs: a licensed architect, professional engineer, and a moisture barrier design and mold remediation specialist. The lawsuit accuses the USGBC of false advertising, deceptive trade practices, and similar claims under New York statutory and common law.

Gifford alleges that the USGBC’s representations that LEED-certified buildings are more energy efficient are false, and that its “third-party verification” claims are also false, because they lead people to believe that LEED includes verification that certified buildings actually perform as predicted.

Gifford argues that the USGBC is a big business with revenues of $64 million in 2008 and LEED-accredited professionals that it “represents,” receiving “billions of dollars” for designing and constructing LEED buildings. It alleges false advertising and other deceptive trade practices to promote LEED certification and to divert business to LEED-accredited professionals.

Other critics have argued that the USGBC overstates the energy efficiency benefits of LEED-certified buildings and conveniently overlooks contrary information. It is easy to understand how a consumer not initiated in the intricacies of LEED might interpret “third-party verification” as confirmation that a building is performing as designed (although for new construction certification, it should not be surprising that certification does not require confirmation of actual performance since certification is awarded before the building has an operating history to verify any claims about its performance).

However, defenders of the USGBC will point out that this is a far cry from the complaint’s claims of the USGBC’s “intentionally, deliberately, willfully, or knowingly deceiv[ing] the public and consumers” or demonstrating “an intentional, willful, and bad-faith intent to harm the Plaintiffs,” justifying injunctive relief, treble damages and exemplary damages.

Issues about energy efficiency of LEED buildings and the failure to validate actual building performance are questions that the USGBC itself and others were already examining. For example, a proposed rule issued by the U.S. Department of Energy (DOE) last summer to implement various legislative sustainability mandates proposes to require that any green building standard used to evaluate buildings for federal purposes include a verification system for post-occupancy assessment of the rated buildings to periodically demonstrate continued environmental benefits and energy savings.

DOE also went on to comment that it is considering a requirement that federal agencies demonstrate that the actual energy use is consistent with the target energy use identified as part of the certification process, and if the actual use is higher than projected, it would consider revocation of the green certification.

Click here to read one LEED AP's defense of the LEED program.

- Edited by Bettina Chang, Consulting-Specifying Engineer, www.csemag.com