LEED Under Fire: Class-Action Lawsuit Fans the Flames of Green Building Certification Criticism

Global warming, greenhouse gases and climate change have all been hot topics in the news over the past decade.[1] Many experts suggest sustainable development is one way to reduce greenhouse gas and carbon dioxide emissions.[2] Buildings play a role in sustainable development because they currently represent 38.9% of U.S. primary energy use and are one of the largest consumers of natural resources.[3]

While green building prominently emerged in the 1990s, its origins can be traced back to the early 1970s with the release of Rachel Carson’s Silent Spring and the advent of Earth Day.[4] The rise of green construction reflects the idea that buildings can complement the environment, not conflict with it.[5] The purpose of a green building is to provide buildings that are sustainable, are energy and water efficient, use land and landscaping appropriately, and use environmentally friendly materials.[6] This is an admirable goal, but an energy-inefficient facility easily offsets all the work that goes into green construction.

In 1998, the United States Green Building Council (USGBC) developed the Leadership in Energy and Environmental Design (LEED) Environmental Rating System in response to growing concern over resource sustainability and energy waste.[7] However, constructing a LEED-certified building is not the same as having an energy efficient building.  While the intent of LEED certification is to encourage energy efficiency and sustainability, it is now sometimes coveted for short-term and quick reward reasons – tax credits, ability to charge premium rent, and the projection of environmental responsibility, while side-stepping the goals of LEED.[8] Are these buildings really accomplishing the overarching goal of sustainability?

LEED certification is granted through a point accrual system based on various characteristics which, when met, leads to a Certified, Silver, Gold or Platinum certification.[9] While the number of buildings qualified for certification has been growing annually, these buildings may not always make a positive impact on the environment after construction.[10] LEED certification is a one-time deal.[11] There are no follow-up visits and certification is non-revocable.[12] With no post-certification tracking, some of these buildings are consuming just as much energy and water as non-certified buildings, while under the guise of being “green.”[13]

USGBC is aware of these concerns and is adapting.  USGBC recently launched LEED 2009, increasing the point requirement for each level of certification.[14] LEED 2009’s goal is to “ensure that future buildings certified under its criteria are even greener than those approved to date.”[15] USGBC has also started tracking LEED-certified building performances and they plan to use this information to continue to refine its standards.[16] Additionally, USGBC created the Building Performance Initiative to further address this problem.  In exchange for voluntary information on water and energy usage, USGBC will provide free analysis of the data and feedback so building owners can improve building efficiency.[17] This voluntary information could also provide data that owners can use to influence their renters to be more efficient.  However, this is a very preliminary step toward addressing building energy and water efficiency.

Despite these positive steps, LEED has vocal opponents.  The discontent with LEED has culminated in a class action suit filed against USGBC alleging violations of the Sherman and Lanham Acts for deceiving users of the LEED system into thinking that LEED buildings save energy.[18] On October 8, 2010, Henry Gifford, owner of Gifford Fuel savings, filed a complaint in the U.S. District Court for the Southern District of New York claiming that this deception has led consumers, taxpayers and building designers to falsely rely on LEED certification at the expense of proven energy-savings methods.[19]

The complaint questions a 2008 study by the New Buildings Institute (NBI), which showed LEED buildings use 25-30% less energy than the national average.[20] However, Gifford says his independent research proves LEED buildings are actually less efficient than the national average.[21] Gifford calculates energy savings differently than USGBC and USGBC asserts that Gifford misrepresents the data.[22]

While USGBC seems to be addressing some criticisms of LEED, Gifford’s lawsuit will continue to shine a light on the certification process.  USGBC has yet to file an answer, but the outcome of this lawsuit could have far-reaching effects for LEED and green certification.  Both proponents and opponents will be keeping a close eye on this ongoing litigation.

-Jacquelyn Thompson, Associate

[1] Judith Perhay, The Natural Step: A Scientific and Pragmatic Framework for a Sustainable Society, 33 S.U. L. Rev. 249, 249 (2006).

[2] Walter E. Mugdan, Promoting Green Construction, SN044 ALI-ABA Continuing Legal Education 305, 307 (2008).

[3] Environmental Information Administration, EIA Annual Energy Outlook, March 2008, http://www.eia.doe.gov/oiaf/aeo/consumption.html.

[4] See Charles J. Kibert, Green Buildings: An Overview of Progress, 19:2 J. Land Use & Envtl. Law 491, 494-95 (2004); Nancy J. King & Brian J. King, Creating Incentives for Sustainable Buildings: A Comparative Law Approach Featuring the United States and the European Union, 23 Va. Envtl. L.J. 397, 408 (2005).

[5] See Keith H. Hirokawa, At Home With Nature: Early Reflections on Green Building Laws and the Transformation of the Built Environment, 39 Envtl. L. 507, 510 (2009).

[6] U.S. Green Buildings Council: Intro – What LEED Is, http://www.usgbc.org/DisplayPage.aspx?CMSPageID=1988.

[7] Id.

[8] Mireya Navarro, Some Buildings Not Living Up to Green Label, New York Times, http://www.nytimes.com/2009/08/31/science/earth/31leed.html?_r=3&hp (last visited Jan. 16, 2011).

[9] U.S. Green Buildings Council: LEED Rating Systems, http://www.usgbc.org/DisplayPage.aspx?CMSPageID=222.

[10] Navarro, supra note 8.

[11] See id.

[12] Id.

[13] Id.

[14] Stuart D. Kaplow, Does a Green Building Need a Green Lease?, 38 U. Balt. L. Rev. 375, 376 (2009).

[15] Id.

[16] Adrian Burns, Green Report: Holding LEED Up To the Light, Columbus Business First, Dec. 3, 2009.

[17] USGBC Press Release, USGBC Launches Initiative to Track Buildings’ Performance, http://www.usgbc.org/News/USGBCInTheNewsDetails.aspx?ID=4186, Aug. 27, 2008.

[18] Complaint at 1-2, Gifford v. U.S. Green Building Council, 10-CIV-7747 (S.D.N.Y. Oct. 8, 2010).

[19] Id.

[20] See generally Cathy Turner and Mark Frankel, Energy Performance of LEED for New Construction Buildings, Final Report, New Building Institute, p. 31 (March 4, 2008).

[21] Henry Gifford, A Better Way to Rate Green Buildings (2008), http://henrygifford.com.

[22] James Stewart and Robbie J. Vargo, Gifford v. USGBC: LEED Certification Challenged, 11 McNealy’s Litigation Report: Construction Defects 20, 21 (2011).

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