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Gifford vs. USGBC: Green Building Program
Taken to Court

Henry Gifford, a mechanical systems designer and strong proponent of energy efficiency, has filed suit against the U.S. Green Building Council, alleging fraud, false advertising, deceptive trade practices, and unfair competition.

The suit was filed on behalf of people who have certified their building under LEED, all those who design energy-efficient buildings whose lives are injured by USGBC's "monopolization of the market", and all taxpayers whose city and state tax dollars are spent on the cost of LEED certification in publicly commissioned buildings. The lawsuit requests $100 million in damages.

Gifford has been a public critic of LEED for several years. Much of the lawsuit is based on an argument he published in 2008, in which he claimed that the LEED rating system did not mean its buildings saved energy — in fact, according to his analysis, they use 29% more energy. (Click here for the article)

In his article, he attacks the Energy Performance of LEED for New Construction Buildings, a study commissioned by the USGBC to measure how much energy LEED buildings actually used. Gifford's complaint was that the sampling of LEED buildings was not random, but rather consisted only those owners or operators of LEED certified buildings who were willing to share their energy use data, which "is a little like making generalizations about drivers' blood alcohol levels from the results of people who volunteer for a roadside breathalyzer test."

Additionally, the New Buildings Institute (NBI), publishers of the report, used energy data from LEED buildings that were all built or renovated after 2000 - meaning they automatically benefit from recent advances in the energy efficiency of lighting fixtures, cooling equipment, etc. The LEED buildings were compared against energy data from buildings that were in some cases, built before 1920.

Lastly, the NBI report used the median value when measuring LEED building performance, but used the mean value when measuring the non-LEED buildings.

"Comparing the median value of one dataset to the mean value of another dataset is a worthless comparison, but in this case it made the LEED buildings look much more energy efficient than they actually are," wrote Gifford. "The truth can only be found by comparing mean values to mean values."

USGBC knowingly misrepresents the results of the NBI study, says the lawsuit, which is considered fraud under the Sherman Anti-Trust Act. Consumers adhering to the LEED rating system rely on the promise that it will save energy and result in lower energy use.

The lawsuit also agues that "USGBC's LEED rating system is supplanting building codes in many jurisdictions, undermining marketplace competition and obscuring other building standards that are proven-unlike LEED-to reduce energy use and carbon emissions."

The lawsuit has brought mixed reactions from the green building industry. Some LEED proponents are welcoming the lawsuit, arguing that it will strengthen the program and provide solid proof that the rating system does result in more energy efficient buildings.

Others argue that LEED is a measurement tool and not a design tool, and the failure for LEED buildings to live up to their promises should be blamed on the designers (and the occupants), not the LEED rating system.

Others in the industry are accusing Gifford of hurting the green building industry, and giving the "anti-greens a whole lot of ammunition."

Precisely the reason LEED needs to be held accountable for its claims of energy efficiency, said Gifford to Environmental Building News. "I'm afraid that in a few years somebody really evil will publicize the fact that green buildings don't save energy and argue that the only solution [to resource constraints] is more guns to shoot at the people who have oil underneath their sand."

The class action lawsuit still has to be certified — Gifford has to prove that there are other plaintiffs with similar complaints, and that he adequately represents them.


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