Class-Action Suit Against USGBC Alleges Deceptive Trade Practices, False Advertising and Anti-Trust in Promoting LEED® Program

A class-action lawsuit was filed against the U.S. Green Building Council (USGBC) last month in the U.S. District Court for the Southern District of New York. The class-action lawsuit, filed by Henry Gifford of Gifford Fuel Saving Inc. and others, claims that the USGBC has engaged in deceptive trade practices, false advertising and anti-trust in promoting the LEED certification program.

Court documents state, “USGBC’s LEED rating system is supplanting building codes in many jurisdictions, undermining marketplace competition and obscuring other building standards that are proven-unlike LEED-to reduce energy use and carbon emissions …” The suit goes on to state, “When LEED accredited professionals design and build buildings instead of skilled professionals … with years of experience making safe, comfortable and energy-efficient environments, the marketplace, consumers and the environment, often suffer.”

Gifford has spoken out about the LEED rating system before. In a September NPR interview he said, “It’s impossible to go out and buy a building with a guarantee for how much energy it won’t use. And the LEED system, by basing everything on energy predictions, continues that. This is one of the reasons why it’s so popular-because it’s painless.”

Court documents note that the class-action suit is brought on behalf of the following classes:

• “All those who paid for LEED certification for property they own in reliance on defendant’s deceptive marketing claims that LEED-certified properties use 25 percent less energy and achieve CO2 emissions reductions over non-LEED-certified properties …

• All persons who design energy-efficient buildings and whose livelihoods are injured by USGBC’s monopolization of the market through fraudulent and intentionally misleading representations in the marketing and promotion of their LEED product line …

• All taxpayers whose city and state tax dollars are spent on the costs of LEED certification in publicly commissioned buildings …; and

• Trades injured by USGBC’s deceptive trade practices because they lose money and valuable time to comply with LEED specifications and the buildings they do build do not use 25 percent less energy, or any less energy, than non-LEED certified properties.”

While a class-action lawsuit may or may not generate change and awareness, some in the fenestration industry point out that programs that take a holistic approach to design and construction are important.

“What is needed is for any rating or certification program to focus on the integrated design, construction and occupancy phases more holistically, taking into account post-occupancy performance and verification that the energy-efficient and sustainable design and construction strategies are successful,” says Kerry Haglund, a senior research fellow with the University of Minnesota, Center for Sustainable Building Research. “The Minnesota Sustainable Building Guidelines is such a program that leads to a full accounting of the actual costs and benefits of sustainable building design and energy efficient strategies. The quick development of the LEED programs has resulted in a lot of good design and construction practices, and more importantly, awareness in the area of sustainability and at some point USGBC will probably integrate required post-occupancy performance metrics into its rating systems, which will be a natural progression of its ever-developing guidelines.”

Ashley Katz, manager, communications for USGBC, could not comment on pending litigation.