Is Henry Gifford Really Rosa Parks?

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.

You had to know this was coming. I even predicted a Lanham Act and Consumer Fraud Act claim would be part of a good green litigation.

Yesterday, Henry Gifford, public critic of LEED (you may have read his Op-Eds in the New York Times) filed a class action law suit against the USGBC and its founders personally on behalf of "consumers, taxpayers, building design and construction professionals."  The allegations are essentially fraud and false advertising, an anti-trust claim and a RICO claim thrown in for good measure.  His theory is that the USGBC has falsely claimed that its rating system makes buildings save energy, and that building owners have spent more money to have their buildings certified, that professionals have gotten worthless professional credentials and people in general have been duped into thinking LEED has meaning. The Complaint can be downloaded here.

There will be a lot written on this suit--blog posts, client alerts, articles will dissect the wrongness or the rightness of the claims. Real estate and construction lawyers, including me, lit up at the sound of the stamp of the clerk in the Southern District of New York where the case was filed.

My initial take (hey--I have to get in my fair share of the follow-on publication) is that the case may have merit, but it has a bad plaintiff.  Rosa Parks was not the only person to object to segregated buses by refusing to give up their seat. She was chosen by the NAACP because she made a good plaintiff.

The plaintiffs in this case are Mr. Gifford, his company, and a resident of the state of Arizona, presumably representing the taxpayer, as nothing is stated in the Complaint about his occupation or other way he might have been harmed personally. 

I don't think that, as alleged, this suit will survive class certification.  In a class action suit, you must consider (among other things) whether the plaintiffs are enough alike so that their claims can be adjudicated together, whether the questions of fact and law are sufficiently similar, and whether the lead plaintiffs adquately represent members of the class.

Here, the Plaintiffs are purporting to file suit on behalf of a whole range of plaintiffs with all different harms--harms to building and design professionals who sought educational certifications, building owners who paid additional money to have their buildings certified and other unspecified "consumers", and taxpayers.

Let's put aside the fact that, as a general proposition, taxpayers do not have standing to sue.  There is a commonality problem and a causation problem for the class--did the USGBC's false statements cause the same type of harm to the same type of plaintiff.  Indeed, did the false statements cause any harm at all to these plaintiffs.

Why go through this academic class certification exercise, except to prove to Professor Burbank, the professor of my Advance Civil Procedure Class on Class Actions at the University of Pennsylvania that, despite the fact that I rarely got up for his 8 am class, I did, in fact, learn something?

It matters because the allegations in the suit matter.  Is the USGBC engaging in intentional, fraudulent actions? Or was it a good organization seeking to benefit the world by promoting more ecologically friendly building practices? Or a little from column A and a little from Column B.

A good lawsuit would elucidate this--through the discovery process, emails might come to light showing that the USGBC did or did not intentionally defraud its constituent groups.  But if the class is not certified, it will be Mr. Gifford, suing on his own behalf.  Was Mr. Gifford harmed by USGBC's actions? Probably not.

To the best of my research, Mr. Gifford is not a LEED AP, and indeed, from his website and publications, he has outspokenly denounced the USGBC and LEED.  Mr. Gifford does not appear to own any property certified LEED.  In short--the USGBC's actions have not harmed him His career, if anything, has been enhanced by the USGBC's position.

Mr. Gifford is a self-proclaimed energy efficiency guru, his website does not provide any case studies on the buildings he has done, and a quick google search reveals Mr. Gifford is inolved in a number of PassiveHouse projects (passivhaus is a competing system for energy efficient buildings).  If Mr. Gifford is the last plaintiff left standing, it will be a much harder lawsuit to bring, let alone win.

It does beg the question, though, even if this law suit fails, are there other plaintiffs waiting in the wings?  For my next post--assuming the class is certified, do the claims have any merit?

 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.

Trackbacks (0) Links to blogs that reference this article Trackback URL
http://www.greenbuildinglawblog.com/admin/trackback/226564
Comments (12) Read through and enter the discussion with the form at the end
Lloyd Alter - October 14, 2010 3:13 PM

He's not Rosa Parks, He's Lord Monckton

By suing, Gifford just gave anti-greens a whole lot of ammunition. Gifford has made a good living, getting invited to lecture to professional groups like Ontario Association of Architects, where I saw him. Now he has turned into the Lord Monckton of green building and will never eat lunch in this town again. He is hurting himself and green building in general. I think he's nuts.

Ken Roko - October 14, 2010 5:45 PM

Perhaps the intentions of the USGBC are in good faith, but there needs to be some accountability for the seemingly false (or altered) claims that they advertise in an effort to validate that good faith to the design and construction communities. I saw this coming and applaud the move.

I do not think he is nuts nor do I think he is hurting green building in general. If anything, the good that may come of this is that it will force the design and construction communities to think about the claims the USGBC puts forward and criticize them without trusting them blindly. Heck, dare I say that it may bring about an overhaul of the rating system and, quite possibly, testing to validate that what was designed is, in fact, reality.

Scarlett - October 14, 2010 11:10 PM

Lloyd, You miss the point entirely. Have you read the cited studies? Do you know that the USGBC commissioned and controlled many of those studies and then misrepresented their results in the most hamhanded way possible? And does anyone really take seriously the oft repeated claims that people in LEED certified buildings are more productive and less sick? And does it bother you that these claims are repeated in legislation now and in SEC filings? What do you know about the process used by the USGBC to develop LEED? Did you know it was developed by a bunch of marketing people and industry players without any reference or use of the usual practices and structures employed in developing actual standards to ensure objectivity and broad participation? Have you not seen how the usgbc has been generally promoting unsupported claims that LEED certification at any level and with any old combination of points equates to high energy performance, notwithstanding its countervailing requirements for outdoor air circulation and tons of glazing to accomodate daylighting? Have you not seen the amount of profit being raked in by the USGBC? Is it so hard to imagine that LEED, which is no more than a grab-bag of vaguely conceived and scientifically unsupported conceptions of greenness (e.g., dark sky, bike racks, daylighting, and locally sourced materials), might bear little relationship to a recipe for an actual well engineered, well operated building and that they've misrepresented its attributes in order to make money?

Dan Georgescu - October 15, 2010 11:44 AM

If you think of the fact that, for example, in a LEED project all the metal ducts in HVAC systems throughout the building are not required to show recycled content, that tells a bit of the inconsistencies of this rating system. This fact leads to a confusion for contractors.
If I zoom out and look, in general, at the loopholes left by the ambiguous language, I accept the fact that Mr. Gifford has a right to call this system in the court.
This rating system, it is somehow similar to the Microsoft Windows where a poorly put together program is propped in later versions with additional linguistic contraptions.
I am not talking of the new disputable procedure of lowering the level of LEED-AP certification of people like myself and reselling it through a later exam with better names just to increase the revenues for this system and a group. The fact that the local chapters of the USGBC are full of mindless youngsters rejoicing of this robbery and de-certification of their peers, it seems to me at least absurd and dishonest to other certified individuals. Just this program deserves to be brought in court. Unfortunately, the professional world is very submissive, accepting demeaning burdens they should not bear.
In conclusion, USGBC is sponsored by the coming and ever-increasing environmental straitjacket and has no check and balances. At least now it is a voluntary exercise for the owner and a preview for the times when this is going to be mandatory but we will have to work with a shoddy rating system. Therefore his courage and effort is much appreciated by everyone left with common sense in his thinking process.

Anna@Green Talk - October 15, 2010 10:16 PM

Any predictions? As the Green Building World Turns. A new reality show?

Henry Gifford - October 16, 2010 1:19 AM

Hi -

Henry Gifford here. Please correct some inaccuracies in the description of me.
- I do not, and have never described myself as a guru.
- There are two sections on my website for "Measured Results," both of which include fuel use data, one a history printed from the utility company's website, the other is mostly for oil, compiled from the owner's records. You can find these sections just below the section about LEED.

Thank you,

Henry Gifford

Eric Johnson - October 16, 2010 5:24 PM

"First of all, what is LEED? LEED is not a regulation or a law; it's not a stone tablet sent down from the heavens. It was intended to provide guidance for and verification of a project's green attributes. It set up a gradated series of requirements, both technical and procedural, intended to guide people toward making better buildings. Not perfect buildings, greener buildings.
When we were building the system we were very cognizant that our knowledge and the tools available would be improving over time and that our expectations should match. We considered an "It's LEED or it's not" type of approach, but realized it is simpleminded to expect binary answers to multidimensional questions, particularly when the current knowledge base was so limited.
Or, as Aristotle put it, "It is the mark of an instructed mind to rest assured with that degree of precision that the nature of the subject admits, and not to seek exactness when only an approximation of the truth is possible." Rob Watson http://in.reuters.com/article/idIN361459205420100625

Eric Johnson - October 16, 2010 5:42 PM

Henry (& others) should have read the Development of a California Commercial Building Energy Benchmarking Database & Energy Benchmarking In Commercial Office Buildings DOE papers. They said what NBI said before they said it. :)
Presented at the ACEEE 2002 Summer Study on Energy Efficiency in Buildings, August 18-23, 2002, Asilomar
Conference Center, Pacific Grove, California, and published in the proceedings.
"Points-Based Rating Systems, including (LEED), do not allow comparisons against other buildings, rather, they provide standards and guidelines to measure how efficient and environmentally friendly a facility is and compared it to best-practice standards."
http://poet.lbl.gov/cal-arch/paper245.pdf
"Statistical distributions of office building EUIs developed from CBECS data can be used for comparing the performance of an individual building to others within its respective census division. Median EUIs are more reliable comparators when it is desired to compare the energy use of a sample of local buildings to CBECS census division statistics. Averages can be strongly influenced by a small number of buildings with excessive individual EUIs. This occurs in the CBECS database and will occur in local sampling of office buildings."
http://www.energy.ca.gov/greenbuilding/documents/background/13-ORNL_COM_BLDG_BENCHMARKING.PDF

Bill Swanson - October 18, 2010 3:01 PM

Lloyd Alter: If his lawsuit is successful then I'd argue USGBC has given the anti-greens a whole lot of ammunition. Gifford would only be guilty of calling a spade a spade.

Eric Johnson; He's not suing because LEED buildings do not ALWAYS save energy. He's suing because of USGBC's claim that an AVERAGE new construction LEED building saves 25-30% more energy than a typical building. Public statements by USGBC management state that LEED buildings save energy. This should be a relatively easy statement to check for accuracy.

Also, the newest version of LEED still does not require energy savings. It only requires ESTIMATED energy savings. Actual meter data is only collected for informational reasons and will not affect a building's certification.

USGBC should be happy for this lawsuit. Imagine the publicity of a court ruling stating that LEED buildings save energy. So let them step up to the plate and prove it.

Stephen Del Percio - October 18, 2010 7:22 PM

The suit was originally reported by the Green Real Estate Law Journal here:

http://www.greenrealestatelaw.com/2010/10/breaking-henry-gifford-leads-class-action-lawsuit-against-usgbc-in-southern-district-of-new-york/

A robust discussion of both legal and building performance issues continues in the comments.

G FE - October 22, 2010 9:21 PM

LEED requires performance testing and commissioning in the process of a certifying any building. You can't just pick and choose points. For energy, for example, there is a baseline requirement, which must be inspected by a third-party energy rater. Funny, LEED grew out of a cirlce of architects and engineers, "nerds" hell-bent on quantifying as much data as possible.

Jay Takacs - October 28, 2010 5:38 PM

From USGBC's site as of this morning;

The LEED green building certification program encourages and accelerates global adoption of sustainable green building and development practices through a suite of rating systems that recognize projects that implement strategies for better environmental and health performance.

They just claimed that their buildings are healthier. Frankly, as the principal of a mechanical engineering firm with 20 years of experience I'm tired of being told that LEED buildings are "healthier" and perform better.

Healthier? Time to prove it. In this country you can't make a health claim without it being evaluated unless you're the USGBC apparently.

I can prove buildings we engineer on a regular basis use less energy and cost less to construct and operate than almost every LEED project we've done save for one. Time for the USBGC to back up its claims.

Nice article by the way, I ddon't have a dog in this fight, but I am a little tired of having to defend every decision we make as design professionals by people who say "if it isn't LEED, it isn't as good".

Jay.

Post A Comment / Question Use this form to add a comment to this entry.







Remember personal info?
Send To A Friend Use this form to send this entry to a friend via email.