N.Y. Court Dismisses LEED Lawsuit

WASHINGTON — The U. S. Court in the Southern District of New York dismissed in its entirety the lawsuit brought against the U.S. Green Building Council initiated by Henry Gifford, holding that none of the plaintiffs in the action had alleged or could allege any legal interest to be protected by their lawsuit.

Gifford originally launched a class action lawsuit in June 2010, alleging that LEED is misleading due to its lack of building performance measurement, and that numbers from a study claiming LEED certified buildings are more energy efficient are deceptive.
In Feb. 2011, the lawsuit was amended to an antitrust case with three plaintiffs added and individual defendants dropped.
The Court dismissed the federal false advertising claims “with prejudice,” meaning that the Court’s dismissal of those claims is final and that plaintiffs are barred from filing a new suit based on those claims, according to the U.S. Green Building Council.
The Court’s ruling simultaneously dismissed plaintiffs’ state law false advertising claims.
Rick Fedrizzi, president, CEO and founding chair of the Council, said the successful outcome was a testament to LEED process and to the Council’s commitment to do what is right.
“Thousands of people around the world use LEED because it’s a proven tool for achieving our mission of transforming the built environment,” he said. “We’re grateful that the Court found in our favor so we can give our full attention to the important work before us.”

Gifford said he and his team are looking into other legal avenues to pursue, with the possibility of trying with better plaintiffs, he said.
“I and many other people are disappointed to see that for the immediate future, the building energy use standard for our industry and our country will continue to be a system based on predictions and anonymity with respect to how much energy buildings actually use, while the rest of the world focuses on saving actual measured energy,” he said.
Gifford reiterated his allegation that the only measurements ever taken show LEED rated buildings have an average Energy Use Index of 105, while most similar buildings average 81.6 — 29 percent more energy use than comparable buildings, “yet all those LEED buildings are all still rated as environmentally friendly,” he said.
“I am very glad I and other people took a stand for the truth,” he said. “I thank the many people who supported our efforts, and we will continue to discuss what can be done to stop this tragedy, including the possibility of legal action involving plaintiffs the court might view as more direct competitors.”
In court, the U.S. Green Building Council argued that they do not claim LEED buildings save energy, which Gifford said has been true since the lawsuit was filed.
Gifford said that the Council was careful to quote only the false claims of others — leading Judge Leonard Sand to ask why the plaintiffs were not suing the New Buildings Institute, the organization hired to conduct the study — but that it is the Council that profits from the illusion that LEED buildings use less energy than ordinary buildings, he said.
“The USGBC argued that I am not a competitor because I do not create green building rating systems. This is like a car manufacturer selling cars they claim get 500 miles per gallon getting sued by a dealer selling cars that really get 60 miles per gallon and defending themselves by saying the dealer is not a competitor because the dealer does not manufacture cars,” he said. “The USGBC’s network of dealers, who they call ‘Professionals,’ compete directly with me, and are unfairly enriched by the false claims of the USGBC, but of course it would be impractical for me to sue each of them.”
Gifford also said that from a constitutional law perspective, he found it unjust for city and state governments to require the purchase of LEED ratings either directly or through taxpayer money.
“Nobody on our legal team has yet thought of a way to bring a constitutional challenge to each of these obviously unconstitutional laws without bringing actions in each individual jurisdiction, which of course is not practical,” he said. “The longer our industry depends on LEED, or any other system based on modeling and predictions, the more catching up we will all have to do when it comes time to learn how to design and build buildings that really are energy efficient.”

For Green Building News’ detailed coverage on the lawsuit, visit Lawsuit Contrasts LEED Certification and Energy Efficiency .