But Is There Fire: If LEED Is A Fraud, Why Aren’t Developers Suing?

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Yesterday, I discussed the fact that Henry Gifford filed an Amended Complaint in his suit against the USGBC for fraudulently claiming that LEED buildings save energy.  The post, as well as the Amended Complaint are available here. I also noted that Mr. Gifford and the other plaintiffs probably do not have standing to bring the suit because they were not harmed by the allegedly fraudulent advertising of the LEED system. 

Mr. Gifford alleges that the people and entities that have been and will be harmed include:

USGBC’s misrepresentations have and will continue to deceive consumers and voters, taxpayers, developers, municipalities, and legislators at the local, state and federal levels.

Amended Complaint at Paragraph 57.

This brings up critical questions about the legitimacy of Mr. Gifford’s claims:

If developers were really experiencing energy performance vastly out of proportion to their expectations, wouldn’t there be suits by developers against their design professionals and/or the USGBC? 

If the Federal government, with one of the largest portfolios of LEED buildings, were really disappointed by their performance, wouldn’t they stop using the system? 

If design professionals were spending money to obtain worthless credentials, then wouldn’t architects (whose profession is down something like 50%) be lining up to demand their money back? 

If the problems that Gifford alleges are so fundamental, why is it that Henry Gifford and a few other plaintiffs who have rejected the LEED paradigm seem to be the only ones suing? 

The concept of abstract “rightness” does not play a very large role in the American judicial system.  With few exceptions, only a person harmed can bring suit to right the wrong done to him or her. So, even if you or I see something terribly “wrong” happening, if we are not harmed by it, we have no standing to bring suit. 

For example, a man stops by a street hustler and plays a shell game.  You are standing on the corner.  You see the street hustler take his money and bilk him.  The man sees it too, but shrugs his shoulders and walks away.  You cannot sue to get the guy’s money back—only he can (or press charges, etc). 

If there are no victims of the USGBC’s "fraud", then Mr. Gifford’s is really just a gadfly who is calling attention to himself by suing the USGBC.  If there is fraud, then we should see a rash of suits by plaintiffs who have actually been harmed–consumers and voters, taxpayers, developers, municipalities, and legislators at the local, state and federal levels.

NOTE: The opinions expressed in this post are entirely those of the author, and do not represent the position of the USGBC or the Delaware Valley Green Building Council.

About Author

Shari Shapiro is a policy and communications consultant with Calliope Communications, which specializes in energy, environmental, and building code policy. Since 2007, she has published the Green Building Law Blog.

8 Comments

  1. Your blog does not include the full motivation for the lawsuit, in which lies their probably legitimate basis for standing. The assertion is also that in promoting/advertising its LEED system as a gauranty of reduced energy use, and saying you need a LEED AP certified individual do this, the USGBC harms professionaly licensed engineers and architects, who are equally capable of deivering reduced energy use and more qualified. Anybody can go out and get LEED AP…there is no prerequiste to take the exam. Harmed = standing.

    • Hi Tony,

      Constructive criticism is important and welcome. But you really seem to not have your facts straight. The USGBC does not require individuals on the team to be LEED APs. Any architect or engineer may work on a LEED certified building. And while the test for LEED credentialing (there are prerequisites, by the way) is no where near the process of becoming a licensed professional, it is bad designers, constructors and operators that make for bad buildings, both LEED and non-LEED alike. The LEED system certainly needs improving, but it is important that criticism of the system be accurate and informed so that the conversation can be productive.

    • Tony- The article you are referring to is almost six years old. How many projects (LEED or not) have been built in the last six years?

      To the others, one should keep in mind that LEED was and is meant to be a base point, it does not mean that non-LEED buildings cant be sustainable. It also does not mean that LEED is perfect or the end all for sustainable design. It is the job of professionals (LEED AP’s, contractors, Architects, Engineers, etc.) to create sustainability in and through design. Can former EB design an energy consuming (or in his case non existent) building with a LEED palque, I am sure it is possible, but that is not the intent or the goal. Can the system be corrupted? Yes, most can be. Is LEED currently a victim of its own success? Yes, for better or worse. Are people jumping in for the green (pun intended) money, I have no doubt. It will take time and patience to sort out, but in the end we can deliver a better more sustainable product to our clients.

  2. Also, read this article http://www.grist.org/article/leed/, for at any rate it will be irrelevant legal outcome – LEED in its current certification system is quickly becoming viewed as broken and many of its veternas are giving up on it and calling for a better system. Only 285 buildings certified since the program started in 2000…that says a lot. Building owners and developers have learned it is too expensive and onerous.

    • Tony needs to get his facts straight on the numbers:

      The report “Green Building by the Numbers”, published in April 2009 by the US Green Building Council – creator of the LEED certification – states there are 2,476 LEED certified projects and 19,524 registered projects, distributed in over 90 countries. Altogether, commercial building space with LEED certification amounts to more than 5 billion square feet.

      http://www.environmentalleader.com/2009/01/07/usgbc-offers-report-on-green-building-by-the-numbers/

      • On this point, I’ve recently shared the following information on our Home Energy Performance iPhone App:

        LEED: 10,000+ Green Homes & Counting

        10,000 + green homes is nothing to sneeze at-especially when those homes are certified LEED, the internationally-recognized standard in green building. As of April 5th, the U.S. Green Building Council announced [PDF] that it had reached this landmark, signifying “the continued transformation of the home building industry[.]“….

  3. Former LEED EB Consultant on

    I worked in the LEED-EB industry for roughly 3 years before quitting my job. In that time I graduated from and engineering school and obtained my LEED AP+ credentials. LEED is in no way shape or form a sustainable route for any individual/ building to go. Consulting fees, fees to meet prerequisites, point chasing, REC agreements, “Retro-commissioning”, etc. all had a dollar EXTREME dollar amounts attached to them. These fees could range in the $120k – $180k when all is said and done. The end product? A plaque.

    Ultimately, this plaque will allow property managers and asset managers to charge more for rent because they have obtained the prestigious LEED-EB Silver/Gold Certification plaque. Subsequently, tenants are willing to pay more to lease a space in a LEED Certified building as it is a great marketing tool. What if the asset manager or property manager invested that $120k into real energy efficiency measures such as HVAC upgrades or optimizing their controls? Well then they would see a payback/ ROI that would be impossible to turn down but no real “gain” to their renting status.

    Unfortunately, LEED is a concept that the average person can wrap their minds around which is why it has become so popular. It’s a corrupt system that allows for companies to take money right out of the pockets of tenants of these respective buildings. Corrective measures that would help to disprove my statement would be a third party audit of these buildings to ensure that they are operating at a standard that meets or exceeds the LEED Requirements.

    To date, there has been no such team/ third party audit of any LEED Certified building. Basically, you could obtain a LEED-EB Platinum Certification for a building that doesn’t exist and no one would know. If you have worked in the industry, then you know this statement could become true. With that said, this might be the only way to discredit the LEED rating system. Thoughts? Ultimately, the point I am trying to make is that money could be better spent elsewhere for these large commercial buildings in regard to energy efficiency.

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