Back in January, we wrote a post about Henry Gifford and his $100M lawsuit against the U.S. Green Building Council. Gifford claimed that the USGBC was using the results of a National Building Institute study to mislead the public about the benefits of LEED certification. Some support for Gifford’s claims can be found in a National Research Council Canada reanalysis of the NBI study, which found that 28-35% of LEED certified buildings were actually less energy efficient, and that the measured energy performance of LEED buildings had little correlation with the LEED certification level.
Since then, the lawsuit has undergone the procedural slow dance typical in litigation:
- Gifford amended his claim, naming 3 new individual plaintiffs and refining the focus on federal and state false advertising claims. The original complaint was attempting to proceed as a class action and included claims based on the Sherman Antitrust Act and RICO. However, Gifford continues to seek injunctive relief that would compel the USGBC to “disclose the actual energy use of LEED properties.”
- The USGBC filed a motion to dismiss, claiming that: (a) Gifford lacks standing to bring the lawsuit; and (b) the USGBC was entitled to accurately report the conclusions of the NBI Study.
- Gifford filed an opposition to the motion to dismiss, arguing that he has standing as a competitor in the “market for energy efficient building expertise.” Gifford also argued that, to be anything but misleading, the USGBC would have to qualify the results of the NBI Study with something along the following lines (which we bet the USGBC opposes):
"By comparing new LEED buildings to older non-LEED buildings, and by comparing the median average of one dataset to the mean average of another dataset, and by carving out a sample of only 22 percent of all the LEED-certified buildings, we arrived at the conclusion that LEED-certified buildings perform better than non-LEED buildings in terms of energy use.
While this back-and-forth is interesting, a much more practical “green” event took place in mid-February when ASTM International released its Building Energy Performance Assessment (BEPA) Standard – E2797-11. According to ATSM, this standard provides a “methodology . . . for the collection, compilation, analysis and reporting of building energy performance information.” Further, it can “enhance the integrity of the benchmarking process for all transactional stakeholders in a standardized, uniform and consistent manner.” You can purchase this new standard from ASTM here.
Bottom Line – Hospitality developers and those looking to purchase hospitality assets should familiarize themselves with the energy use and cost data being produced under the new BEPA standard. To borrow from a favorite phrase of both Lenin and Reagan, while you can trust the LEED credentials, you should verify.