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.