Henry Gifford, a New York City building energy consultant and long-time critic of the energy efficiency of LEED®-certified buildings, filed a class action lawsuit against the U.S. Green Building Council (USGBC) in the Southern District of New York on October 8.
The theme of the complaint is that USGBC’s claims that LEED-certified buildings use 25 to 30 percent less energy than buildings that are not LEED certified and that USGBC is a leader in energy are fraudulent misrepresentations. Based on causes of action that include an action for monopolization through fraud under the Sherman Antitrust Act, unfair competition under the Lanham Act, deceptive trade practices and false advertising under New York law, wire fraud under RICO, and unjust enrichment, plaintiffs ask the court to enjoin USGBC from claiming that LEED buildings perform better than non-LEED buildings and from calling itself a leader in energy. Plaintiffs also assert statutory, compensatory, actual and punitive damages, including damages incurred by construction professionals losing market share to LEED-certified projects, and by defrauded builders, owners, and consumer homeowners for the cost of LEED registration, certification and professional accreditation, and other USGBC fees paid in reliance on its fraudulent promise of energy savings.
While the complaint contains various inconsistencies and could be viewed as overstating the case, buried in the rhetoric are issues that the USGBC has been struggling with.
The complaint repeatedly criticizes the USGBC for relying on modeling and projections of energy savings, as opposed to measuring actual results. However, this is inherent in evaluating new construction. During the design and construction phase of a building, there is nothing to measure. On the other hand, under the existing rating systems there is no assurance that the projections will turn out to be accurate or that anticipated results will be achieved.
Similarly, the complaint attacks the link between LEED and energy efficiency, focusing on USGBC’s reliance on an NBI study for the proposition that LEED buildings are more energy efficient than non-LEED buildings. For example, the complaint asserts that the NBI report compares the median value for LEED buildings to the mean value of buildings in general. By taking the middle value (median) for LEED buildings, as opposed to the average of the values (mean), extreme results are ignored and the resulting value does not reflect the relative weight of values on either side of the midpoint. According to the complaint, if the mean (as opposed to the median) value for LEED buildings is compared to the mean value for general building performance, the LEED buildings use 29 percent more energy, as opposed to being 25 to 30 percent more energy efficient.
While there can be disagreement about allegations in the complaint, there is reason to be cautious about drawing conclusions regarding the relative energy efficiency of LEED-certified buildings. Although not in the complaint, the NBI study itself includes significant qualifications. For example, it points out that more than half of the LEED projects deviated by more than 25 percent from design projections, so that "[s]tatistically credible, precise quantification of LEED savings will first require narrowing this range of variability."
For a variety of reasons, it is not clear whether the complaint will go anywhere. However, it raises questions that are worth pursuing, as USGBC itself has already acknowledged to some extent.