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New Plaintiffs Join Amended LEED Lawsuit

Filed February 7th, 2011, the amended complaint has been boiled down to a claim of false advertising, and is no longer a class-action suit.
February 8, 2011

This graph from the NBI study critiqued by Gifford shows how the actual energy use of LEED buildings compares to national avg. values—although only the office category has enough buildings to represent a reliable sample.


From LEEDuser's sister publication Environmental Building News:

A federal lawsuit filed in October 2010 against the U.S. Green Building Council (USGBC) and other defendants, focusing on allegedly fraudulent claims of the LEED rating system, has been amended. Filed February 7th, 2011, the amended complaint has been boiled down to a claim of false advertising, and is no longer a class-action suit.

As with the original lawsuit (see “USGBC, LEED Targeted by Class-Action Suit,” EBN Oct. 2010), the amended version focuses on a critique by Henry Gifford, a mechanical systems consultant, that USGBC falsely claims that LEED guarantees energy savings in LEED-certified buildings.

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Instead of seeking to establish a broad class-action lawsuit representing building owners, taxpayers, and professionals harmed by LEED, the amended lawsuit focuses on the latter. It claims that Gifford and other professionals are, in the words of the complaint, “losing customers because USGBC's false advertisements mislead the consumer into believing that obtaining LEED certification incorporates construction techniques that achieve energy-efficiency.” The suit seeks an injunction and damages against USGBC.

Instead of seeking to form a class of plaintiffs harmed by LEED, Gifford brought on three other professionals to the complaint: an architect and two engineers. Other defendants named in the original suit, including Rick Fedrizzi, David Gottfried, and Rob Watson, all associated with the founding of LEED, have been removed.

A “cleaner” suit

The amended suit is “cleaner,” Stephen Del Percio, a lawyer and author of the blog GreenRealEstateLaw.com, told EBN. “It doesn't have to go through the certification of the class and that sort of hurdle toward getting to the merits,” he said, although he noted that it remained to be seen whether the change would work in the favor of either party.

Del Percio noted that the allegations are fundamentally unchanged, as is one of the central legal questions—whether the plaintiff has standing. In other words, regardless of Gifford’s claims that USGBC misrepresented the benefits of LEED, it is unclear whether he and the other plaintiffs have sufficient stake in the question. Del Percio and other observers anticipate that USGBC will move to dismiss the case on this basis, but that it could possibly move toward a discovery phase, in which internal communications at USGBC could be made public.

Plaintiff comments

EBN asked one of the newly added plaintiffs, Andrew Äsk, P.E., a Florida-based engineering consultant, to elaborate on how he was harmed by USGBC. “It is becoming more common for institutional owners to be listing LEED credentials as a requirement to do work for them,” he said. “Since I don't subscribe to USGBC I am shut out of most projects.” (Later in the conversation Äsk hedged on whether it would be fair to attribute any loss of business to USGBC.)

Äsk complains that over-reliance on the LEED Accredited Professional (LEED AP) credential leads to incompetent, less-experienced people taking work from more experienced professionals like himself. EBN asked whether, were that to be true, it would warrant a lawsuit. Äsk called that a “fair question,” but noted Gifford’s analysis showing that the LEED system has been unfairly strengthened by USGBC’s false advertising.

Äsk then acknowledged that he was not familiar with the details of Gifford’s complaint, telling EBN, “Henry’s done the homework—I haven't.” Äsk said that he was supportive of USGBC’s environmental goals, but not its methods, which he characterized as “certifying buildings prospectively without proving that they are going to save energy.”

Äsk added, “Let's build the building, occupy it, and then read the meter” to assess energy savings. Asked his opinion of USGBC’s LEED for Existing Buildings rating system, which includes water and energy metering and performance requirements (some of which are also being incorporated into LEED for New Construction through USGBC’s Building Performance Partnership), Äsk said he wasn’t aware of that system, but that “I would back off from my claim” to the extent that it operates as described.

Taryn Holowka, director of communications for USGBC, told EBN that USGBC had just received the amended lawsuit and was evaluating it. The deadline for USGBC’s legal response is April 7th. As with the orginal lawsuit, the amended version was filed by Norah Hart of Treuhaft and Zakarin.

Gifford’s critique

As EBN has previously reported, at the heart of the lawsuit is Gifford’s critique of a 2008 study from New Buildings Institute (NBI) and USGBC that is, to date, the most comprehensive look at the actual energy performance of buildings certified under LEED for New Construction and Major Renovations (LEED-NC). While the NBI study makes the case that LEED buildings are, on average, 25%–30% more efficient than the national average, Gifford published his own analysis in 2008 concluding that LEED buildings are, on average, 29% less efficient. Commentary questioning the respective statistical approaches of both the original study and Gifford’s analysis appears in this BuildingGreen.com blog post by Nadav Malin, president of EBN’s publisher BuildingGreen.

What are your thoughts on this lawsuit and unfolding story? Please comment below.


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February 10, 2011 - 12:30 pm

Thank you Tristan and LEEDUser for opening this blog up - I think it's very valuable. And thank you Brendan for your comments and reading and including ours.

So with M. Mead in mind - I suggest the USGBC put an small expert panel of 10 to 12 PE's and Architects with LEED experience (find them all on the EBN advisory board) and compensate them for their time to immediately address this very dangerous threat to the LEED system, design professionals, and to green building in general. This lawsuit has little merit - but it should serve as a wake up call to the future ones that will.
Does the USGBC REALLY want the MPR #6 data to come back to show LEED buildings don't save energy? I know I don't. Fix it now.

and some responses on specific comments:
1. No one here has said that energy modeling is useless - but it has its limits and, like any statistic, results can be presented to show what you want (ie what counts as a 'ventilation load'). Models are certainly useful at the research (DOE, NREL) level because then they are broadly educative. And frankly, I should be able to pull up an energy load profile chart for any standard building type, by climate and building size and use that to help clients spend their efforts solving the right problems from the very beginning.
And model results should be looked at in an absolute way - in addition to a relative way. A Hummer that improves its mpg 50% is still a Hummer. The EPA Energy Star Target Finder Database is one source of what the absolute kBTU/sf/yr number should be - the others like CBECS average nationally - which is misleading for building envelope (climate) load dominated buildings.

Spending thousands of a client's money to perfect a model past the point in the process where you can make substantial design changes for energy improvement is useless and wasteful (sorry Jason - I hope that is not what you are doing today). Model it imperfectly, improve it to an absolute EUI standard (then no baseline model is needed), and measure it all for 2 years.
Less time, less cost, more low energy buildings.

2. on energy vs.air quality: There are trade-offs throughout the entire spectrum of green building decisions. the point is not that we find the perfect intersection of everything. The point, is that we understand why and what we have chosen to prioritize. I've worked on LEED buildings for 9 years and green architecture and energy research for 9 years before that (absolutely no McMansions - wrong Sage Eric) - and I don't feel the LEED process is flexible enough to allow teams to smartly prioritize.

3. and finally, should zero net really be the goal? This is not to discount the value of showcasing what's necessary for this; but time and money and human energy are resources too. I think if we have policies that help get 80% of all (not just LEED) new and renovated buildings to 40% improvement over a standard EUI - we'll be doing pretty darn good.

February 10, 2011 - 4:25 pm

Which one is it? Zero Net Energy or unrealistic.
How do you get to zero energy buildings without modeling? Just by measuring performance? Someone has to figure out how to build a cost effective, aesthetically appealing, commercially viable building before you can measure anything. LEED seems to be marching on in that direction.
I agree the existing building stock does absolutely need to be included in the equation.
I think the Europeans are serious about their goal.

February 10, 2011 - 3:21 pm

Eric wrote 'Shouldn't LEED or being sustainable be ahead of that or aim to be?'

Yes, and a building that proves it was occupied without anyone freezing and Zero Net Energy over 2 years of metering should get all 19 EAc1 points - plus the 7 they probably needed for on-site renewables. No modeling docs should even be required - Zero is 100% improvement over any baseline.

Europe is free to set their own unrealistic policies - their buildings are more efficient but not zero - and their climate is milder. And most of their goals are carbon based - so I'm wondering how the nucs play into that equation. (France is 75% nucs, 1% clean renewables) If at the end of the day we solve the carbon problem with nuclear, I don't think we've solved much.

I think setting standards that are unattainable actually discourage. all I'm saying is 'spread the wealth' - 40% reduction across 75% is better than 100% reduction across a fraction of 1%. There is a huge cost, time, resource and 'embodied energy' increase to get to zero.
'take small steps - and quickly' was that Jane Jacobs? or Margaret Meade again?

and yes, Jenny, include energy and facility managers - but no vendors please - that is partly how we got here.

February 10, 2011 - 1:45 pm

The thought of working group is interesting, but I would suggest that an exclusive line up of PEs and architects is unnecessarily limited. The problem of realizing the promise of efficient design is unlikely to be solved without engaging operators and a slew of others as well.

February 10, 2011 - 1:26 pm

European buildings will be required to be close to zero energy by 2020.
"By 2020 new buildings will have to consume “nearly zero” energy with a focus on renewables"

Shouldn't LEED or being sustainable be ahead of that or aim to be?

February 9, 2011 - 9:50 pm

"19. Upon information and belief, USGBC and/or its affiliates have authorized or accredited approximately 140,000 individuals to serve as certified designers of LEED buildings (hereinafter, “USGBC sales representatives”.). The hiring of a USGBC sales representative to prepare the certification application earns one point."
Hey Henry, BREEAM gives two points.....

February 9, 2011 - 10:22 pm

I'm certainly not a designer as I wouldn't design 65%glazed WWR. Here's what the LEED AP guide says Henry "A LEED AP is an individual who has passed the exam and possesses the knowledge and skills necessary to
participate in the design process, to support and encourage integrated design, and to streamline the application and certification process."

February 9, 2011 - 5:36 pm

so take this with as large a grain of salt as you think is required:

i've been advised, repeatedly, that there's a perilously fine line between commenting on pending litigation and expressing thoughts about the state of our industry. i'm doing the latter - not the former.

i consider myself somewhat of a connoisseur of leed criticism. my title is vp, leed technical development so lots of criticism about the way leed works comes my way. it might be the sheer volume of criticism i see but over the years i have to admit that i've become a bit of a snob about it. that said, some of the very best ideas i've ever seen for making leed better happen in forums like this (which is one of the reasons i read them). i look back and wish i had kept a running tally of specific instances where a blog post or a passing comment in the hall at greenbuild have changed the way leed evolves but i'm not an overly detailed note taker and most of the time people weren't looking for credit anyway. our thanks to all the nameless/uncredited anyway.

i'd like to add a few thoughts to this discussion - some of which i find very productive:

the institution of mpr6 (the data reporting requirement), the building performance partnership (which we've been building since the initial nbi study was published) and the feedback loop that our gbig program is connecting are part of the continuous improvement of this tool we've all invested so much time, passion and hope in. the proposed changes for the next version of leed are proof of that - please take a look. but, in your review of the proposed rating system please remember that our work is ahead of us, not behind us. it can always be better and we're in it with you.

michele and jason - please consider your comments here officially part of the leed 2012 1st public comment period. i can't say i agree with everything you've written, but that doesn't mean that your ideas won't combine with someone else's to make magic. if you've got more, keep 'em coming!

also, to respond to the parting thought from michele's last post, i think we should all remember our margaret meade - http://www.bookbrowse.com/quotes/detail/index.cfm?quote_number=88

brendan owens, LEED AP (and pretty damn proud of it)

February 25, 2011 - 4:02 pm

Hi Brenden,

I appreciate the fact that you read various forums and talk with the people at GreenBuild to get a sense of where to steer LEED in the future. But your post above instantly reminded me of my first frustration with the LEED system.

You said, "i look back and wish i had kept a running tally of specific instances where a blog post or a passing comment in the hall at greenbuild have changed the way leed evolves "

LEED is designed to evolve via public comment. It's always being touted as consensus based. My own experience in submitting and reading others comments are that none are adopted, from anyone. Only trivial proof-reading items are accepted.

From your comment it sounds like most of the significant changes to LEED over the past few years has been from decree on high. I'm curious how many of your ideas had previously been rejected by the TAGs during Public Comments.

I really would like LEED to work but there are fundamental issues that need fixing. One being how Public Comments are absorbed into LEED.

February 9, 2011 - 2:03 pm

1. "The NBI Study compared a set of new buildings to a set of old buildings...CBECS includes buildings that were built as early as 1920. The LEED sample consists exclusively of buildings built or renovated after 2000.
2. "Certification does not require actual energy use data"

Anyone who's poked around in CBECS knows that EUI for pre-1959 buildings is less than for newer buildings (http://www.eia.gov/emeu/cbecs/cbecs2003/detailed_tables_2003/2003set14/2...), so comparing LEED buildings to very old buildings would more likely diminish the amount of savings rather than over-report, as is being implied here. (Note this is for the average of buildings of all sizes, but there is variance when you start looking at building size).

And really, the plaintiffs should find some way to distinguish their BD&C gripes from all of LEED, as EBOM is chock full of empirical data.

February 9, 2011 - 10:10 pm

Didn't the Existing Building rating system start in 2004? With an offer for free certification for projects previously certified under New Construction? Wasn't Platinum certification free at one time? Details, like research. should be left to others....

February 8, 2011 - 5:31 pm

I hate to diappoint these guys but LEED certification is not only about energy savings.

I find the argument that it is USGBC's fault that they are being disadvantaged because they refuse to become LEED AP's kind of odd. Take the test.

If LEED certification doesn't have any value added then why do the engineers I work with on my LEED projects seem to know a lot more ASHRAE 90.1 than the ones that don't.

February 10, 2011 - 7:57 am

Thanks, will take a look. Coincidentally, I don't have time right now, as I'm doing a building energy simulation.

February 9, 2011 - 10:58 pm

An article, slightly dated, you may find worth the time to read. http://www.taylor-engineering.com/downloads/articles/ASHRAE%20Journal%20...
It seems to explain the reasoning behind some of the difficult energy- indoor air quality trade offs.

February 9, 2011 - 10:44 pm

CA has some nice free tools (not $250,000) to do energy analysis. http://www.cacx.org/resources/rcxtools/spreadsheet_tools.html

February 9, 2011 - 10:08 pm

Wow. That's a lot of cut and paste, man!

It was not my intent to suggest that building modeling is not valuable. It is extremely important. But once the building is built, why spend countless engineering hours at the keyboard twiddling with the sim?

If the building is not performing well, go to the building management system, do some trending, find the problems, and fix them. Getting the E20/Trace/Blast/eQuest/Whatever model just perfect doesn't have any payback at that point, and the effort would be better channeled to optimizing the systems that are in the building and running.

February 9, 2011 - 9:46 pm

It seems like the "real" building scientists at our US government energy labs think energy modeling has some value. Maybe you naysayers ought to let them know that they are just wasting their time and our tax dollars??????
""Building researchers at NREL support the U.S. Department of Energy's goal to create the technology and knowledge base for cost-effective zero-energy buildings by 2025. A zero energy building produces as much energy on-site as it consumes on an annual basis, primarily through energy efficiency with any small remaining loads met by photovoltaics and other solar energy technologies."[1]

"However, DOE's zero energy buildings goal cannot be met solely through research to improve energy performance of individual building components (e.g., windows, appliances, heating and cooling equipment, lighting). It also requires a revolutionary approach to building design and operation that can achieve 70%-80% reductions in load coupled with careful integration with onsite renewable energy supplies as well as thermal and electrical storage."[1]

"A revolutionary design, in turn, requires a powerful energy simulation tool that supports evaluation of new zero energy building demand-reduction and energy-supply technologies. The simulation tool must also support various decision points throughout the life cycle of building design and operation. These new software tools calculate the behavior of building control systems and the resultant impact on energy use, peak demand, equipment sizing and occupant comfort to provide performance insights that were previously unavailable to the building industry."[1]

"Energy simulation software tools for evaluation of energy efficiency, renewable energy, and sustainability in buildings are being developed by researchers at NREL. The energy analysis tools listed below include energy analysis software used for both residential and commercial energy performance simulation."[1]"

February 9, 2011 - 4:51 pm

thanks Jason - and you are right
the MERV13 requirement for EQc5 does not make sense for the majority of applications. Obviously, the intent is to filter outdoor pollutants. So perhaps they make sense for New York City hospitals or condominiums (although residential buildings are rarely fully mechanically ventilated anyway).
A while ago, a mechanical contractor I know investigated a public school which achieved LEED Gold 5 years ago! They were wondering why on earth the energy bills were 3 times higher than any other school in town per sf. My mechanical contractor friend suspected the reason - he had them look at the filters which hadn't been changed for 3 years (public school cutbacks you know)! You guessed it - 4" of gunk on the MERV 13's blocking the air flow creating a huge pressure drop! Again, high filtration could be an innovation for certain regions and building types.
and to Jenny Carney - no I missed the comment period last time but I've made these comments before.
Changes often take a large group of people saying the same thing.

February 9, 2011 - 2:52 pm

These are great comments about the foibles of the increased ventilation, M&V, mega filtration, and energy modeling protocols. I hope you all issued public comments for the proposed changes to LEED last month??

February 9, 2011 - 2:36 pm

Michele, you are a God-like entity. To summarize: What she said.

I would also add that the requirement that ALL air passing thru ANY mech eqpt must be MERV 13 filtered to get that credit is counterproductive. It effectively disqualifies, for example, wall and ceiling mounted split systems, which are perhaps the most efficient available equipment for some applications. It also precludes the use of such standard equipment as cabinet heaters. My response to this has been to provide the ASHRAE minimum filters on my projects, to reduce fan energy use, since I can't get the filtration credit anyway because of this ridiculous interpretation. Was this USGBC's intent?

And the M&V credit is a hopeless kluge. Set a reasonable minimum for metering, and then monitor the building. The data gleaned from a year or two of trending would be very valuable, especially if it were all gathered in one place for further analysis. Why is this not part of the credit? USGBC could use it definitively quantify how well it's all working.

And what is the point of the exercise of using hundreds of engineering hours to continuously adjust the computer model during the first year of occupancy? Exactly what would one do with the $250,000 worth of Trane Trace simulations after the engineers and building managers have spent all that time on them?

February 9, 2011 - 2:07 pm

read the USGBC website under 'What LEED is ...'

'LEED is an internationally recognized green building certification system, providing third-party verification that a building or community was designed and built using strategies aimed at improving performance across all the metrics that matter most: energy savings, water efficiency, CO2 emissions reduction, improved indoor environmental quality, and stewardship of resources and sensitivity to their impacts.'

'providing third party verification' ? No way - people are lying - especially on materials. in order to claim this, the USGBC has to start an on-site invoice inspection and audit system. Submitting fake cutsheets or omitting non-compliant products is lying and don't kid yourself - when incentives or client payment is at stake - it happens!

and with respect to energy, water and carbon ...
'aimed at improving' is the key phrase. 'aimed' but not really doing? and 'improving' over what? For energy that is ASHRAE 90.1 appendix G performance rating system energy modeling method - which is NOT a good standard for overall building energy use and does not guarantee a LOW energy building.
All ASHRAE 90.1 G and the modeling method does is ensure the components are efficient and that you've improved the performance from the Hummer you started with. And it is entirely possible - in fact - now the fashion - to put efficient components together to make a terribly inefficient product. Think of a building in a cold climate that is 40% window to wall ratio with R-5 glass.
good windows - bad building.

If the USGBC wants to fix this problem - they don't have legal room to wait 10 years until all the data is in. Do it NOW with the following measures:
1. Require 2 years of full energy and water data (yes, I know, people use energy not buildings ... but still.... what is the goal... you can't separate the beauty from the beast). normalize for weather per degree days, document operating mistakes, etc. Match the energy data up to the EPA Benchmark system for building type, usage, and climate, and measure k/btu/sf/yr. (LEED EBOM does this - NC and CI do not). A building that is not EPA Energy Star (75 percentile) should not be LEED certified. And the USGBC and the EPA MUST work together to expand the database. Energy Star (or better) should be required BEFORE certification.

2. Measure energy or source carbon with a nuclear/environmental penalty - not energy cost. Design team and consultants gerrymander energy rates to maximize EAc1 points. ie: 'let's use a flat electrical rate to minimize the gigantic summer afternoon peak load penalty from these monstrous west facing windows- etc. etc.' go ahead and throw in another credit for shaving peak loads to limit new production on the bigger scale.

3. Plug the energy holes: EQ and EA credits go against each other and high levels of ventilation cost energy in most climates and are most likely contributing to the high energy usage of LEED buildings. Please let's get rid of EQ Credit 2 - we do NOT need 30% more ventilation than ASHRAE 62.1 2007! All this credit does is cause dollar signs to appear in the eyes of the mechanical subcontractor looking to bigger your system without making it more effective. Make that an established ID credit for mechanic shops, nail salons, and smoking bars (oh sorry - no smoking as per EQp2 - and no getting around it either by pretending the ground floor 'casino' is a fit-out to be built later - shame on you Las Vegas!).

I doubt any professional doing green buildings can claim they have been hurt by LEED because they are not a LEED AP. In all professions there are experienced good but un-certified practitioners who know more than the person with the fancy letters after their name. That is life.

But there will be lawsuits from building owners who are not getting what they think LEED sold them. And then, there will be an expanded array of defendants in those lawsuits...

USGBC/GBCI - fix this NOW and we will help you - we are locked into this system by YOUR marketing campaign and we would rather do green buildings then go down in this sinking ship of your design.

Michele Helou (no letters here today)

February 9, 2011 - 2:00 pm

LEED certification certainly has changed the construction landscape; an industry that was typically based on cost per ft and cost reduction has new evaluation criteria. Green buildings are evaluated on longer term return on investments as well as intangible benefits for consuming looking for a healthy equilibrium between consumption and sustainability. However, given the recent claims of Henry Gifford, Mechanical engineer turned USGBC critic, that LEED building use 29% more energy than CBECS building when comparing newer buildings (2000 to 2003 construction) it seems that evaluation criteria will become even more important.
Unfortunately the data analysis stinks of a greenwashing and with the negative publicity that Gifford is evoking negates the pioneer work that USGBC has done to ensure that sustainability and construction are not polar opposites. LEED, still in its infancy as a certification model is going through the usual growing pains, figuring out meaningful evaluation criteria and metrics. Even though I agree with Gifford’s data analysis, a $100M lawsuit from an individual who does not own any LEED certified property and is not AP certified begs the question how was he personally harmed by USGBC’s assertions that LEED certified building are more energy efficient. Rather than take the adversarial approach Gifford has chosen how about a partnership to create better evaluation criteria that truly measure energy saving effectiveness.

(LEED certified that the 122 building they surveyed used approx. 69,000 BTU’s of energy per square foot compared to 91,000 BTU’s of energy per square foot leading to 24% energy efficiency for LEED certified buildings. Gifford, after analyzing the data further found that USGBC had used a sample size for comparison that didn’t fit well given more recent data and used a more favorable average (median) rather than mean to justify LEED building reduction in energy consumption. )

February 9, 2011 - 10:15 am

No question it's not just about energy savings. In fact, many LEED buildings use MORE energy than they would if they did not have LEED features. And they certainly cost a lot more, and there's not nearly enough acknowledgement of that in the propaganda. His issue is that many owners think they'll get a building with lower operating costs, which frankly is all most of them are interested in. LEED runs counter to that in many ways. Now that LEED 3 requires collecting data after construction, the extent to which these buildings really do (not) save money will be better understood. My bet is, they don't save much, and the owner is in most cases never going to recover the significant cost associated with that pretty plaque in the lobby. Frankly, it's largely a boondoggle at this point, with greater emphasis on the USGBC's cash flow than the actual science of building better buildings. --- Jason Chenard, PE - Emphatically Not LEED Certified

February 9, 2011 - 12:08 am

Seems like Mr. Äsk ought to be better acquainted with the lawsuit to which his name is attached. "EBOM? What?"