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.