Because hospitality developers are increasingly being encouraged, and in some cases required, to comply with the LEED rating system, we have been keeping an eye on Gifford v. U.S. Green Building Council. Gifford's bomb throwing was not only entertaining (see our original post for one of the great lines of from last year) - it also raised the serious question as to whether LEED compliance actually produced any cost savings.  

That assignment appeared to come to an end earlier this month as Gifford's first amended complaint was dismissed on procedural grounds.  As a consequence, it doesn't look like a court will have the opportunity to delve into the substance of Mr. Gifford's claims any time soon.  

But in noodling around for context, we stumbled upon a recent Architecture Boston article titled “The Shadow Government: With little public oversight, the organization that invented the LEED system is remaking an industry.” In that article, author Michael Liu raises concerns regarding the adoption of LEED by a host of state and local governments and governmental agencies. Mr. Liu compares the use of LEED to the use of other standards promulgated by organizations such as ASTM, UL and ANSI and states:

“...the difference between these institutions and the USGBC is that while government regulators rely on the standards, regulations and research such organizations produce, the USGBC has become, in effect, a regulator itself. . . The issue then is not the LEED rating system, the virtues and shortcomings of which can be separately discussed, but the process of certifying buildings and the creation of a fee-generating bureaucratic structure to do so. . . . although the USGBC’s LEED system has done more to bring the cause of sustainability into the public consciousness than any other, perhaps the time has come to revisit that assumption in the case of a private regulatory body that is not answerable to governmental authority.”

The article opens by crediting Mr. Gifford for raising the question as to whether "it is appropriate for a private fee-generating nongovernmental organization to assume what amounts to a regulatory role in the building industry."

Given the above, it doesn't look correct to characterize Gifford's claims as having been dismissed.  Rather, it may be more apropos to say that there has been a change of venue.