But Is There Fire: If LEED Is A Fraud, Why Aren't Developers Suing?
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.
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.
Shari focuses on energy, environmental and building code policy, representing international companies, non-profits and trade associations in their policy and communications campaigns
Shari: I agree with your analysis of the case but also think that there is a hesitancy for those in control of the decision to pursue LEED certification to mount an attack on their own decisions. I think we'll see more and more vanilla claims coming in the next few years as LEED certified structures change hands and are examined by those that weren't involved in any of the initial design and construction decisions. Great blog. Keep up the good reporting!
Cliff Ashburner
There are some flaws in this logic.
1) The developers rarely, if ever, operate the building. The operating cost are handled either by the owner or the management company. There is currently no requiement or incentive for these individuals to receive the energy model to know how their building should perform. Even LEED O&M takes five years of data to prove that the building proves as expected, and very few are willing to release the data that LEED wants for the program.
2) It's entirely possible that the building operators have issues with the performance, but the design teams are still unaware of those issues. If the issues are deemed "small" then they don't get passed back up the chain. And most building operators are not aware of the cost of energy. Accounts Payable receives the bill and pays it. It may get passed back that the energy cost need to be trimmed, but there is no discussion of whether the technology being used will allow them to meet certain goals.
3) Many design professional are not choosing to pursue or renew their LEED creditials. Architects adopted the creditial as it allowed them to sell services at a premium. But energy, technology, IT, electrical and mechanical contractors are not so smitten. It has actually hurt their sales. LEED refuses to grant points to certain technologies, such as video conferencing which would greatly reduce carbon emissions, into it's rating system. If the building employees an EMS it receives no points for this.
None of these facts mean that LEED is not a good program. It does mean though that a LEED certified project may not save more energy vs. a non certified project. Mr. Gifford is right and wrong. RIGHT: LEED is deceiving in saying that their buildings use less energy. WRONG: LEED is mostly accurate in stating they are more environmentaly conscience, holistically.
It still doesn't change the fact that he doesn't have a leg to stand on though. The whole issue of energy management requires a new model. A buyer needs to know what he's expecting to get, much like the EPA MPG rating on cars. When he doesn't get that (and building operators have to have that constantly in their face) then you will see change in how buildings operate.
"If LEED Is A Fraud, Why Aren't Developers Suing?"
Developers that receive LEED certification aren't going to challenge the USGBC if their buildings do not perform properly. LEED is a marketing tool, so developers have no reason to tarnish the LEED brand by going after the USGBC. They do have reason to file lawsuits against the architects, contractors and engineers involved in a green building that does not perform properly. This applies equally to private developers and government agencies.
We are all victims of LEED and Mr. Gifford should be congratulated.
LEED was contrived as an absurd grab bag of greenness by a group of marketing execs. Having a scientific background, my first impression at reading a LEED guidebook was shock that the system contained not a single footnote, not a single reference to research, no coherant overarching goal (such as net carbon emissions), and lacked any mechanism for professional discretion. I was also surprised by the LEED-AP test was simply an exercise in memorization of the LEED point system--as in literally memorizing the numbers of the points. I passed it with absolutely no background in construction or architecture. Finally, I was shocked to discover that the usgbc had the hubris to conduct an all-paper "third-party review process." Not surprisingly, I guess, they do not review building integrity, plans/specs, code compliance or anything that might resemble the practice of architecture or engineering. That would, after all, get them in a lot of trouble and require insurance and education. Instead, the "review" is really just an annoying act of green bookkeeping, simply checking off the required calculations, invoices, and other paper necessary to get the desired points. In other words, an invitation to lie and submit false documents and invoices in a manner in which the construction industry is already extraordinarily adept.
But then came 9/11 and $4 gasoline. Suddenly, the USGBC began marketing LEED and "LEED buildings" as being a proxy for something real--energy efficiency. The jolly green grabbag of LEED and its "third party review" was now marketed as something real and tangible. At the same time, public policy demanded measures to decrease reliance on foreign oil. State and local legislators, anxious to be perceived as green and sustainable, but without the ability to come up with their own system, found it all too easy to legislate LEED. According to the usgbc, LEED is now the law in some 45 states, including 206 localities (142 cities, 36 counties, and 28 towns), 34 state governments, 14 federal agencies or departments, 17 public school jurisdictions and 41 institutions of higher education across the United States.
And now to your question. Who is harmed? Well, every taxpayer is harmed by having to pay millions to the usgbc for the construction of public schools and buildings. Every arch and engineer is harmed by being forced to now take continuing education credits presented by untrained hacks who have managed to pass a LEED-AP test. And by getting shut out of projects because the owner or public body that is financing the project actually thinks that LEED is a proxy for something real .
Now as to why there haven't been lawsuits against the usgbc. I'm surprised you haven't put this together yourself. Why would there be lawsuits? Everyone who matters is in on the game. Contractors and arch and others stand to make more money by using leed. After all, there's no real downside. The submissions to the usgbc go into a black box; there is no credible threat of revoking a certification; the review is only a paper collecting exercise; the usgbc has its disclaimers in place; taxpayers don't have the time to learn about the scam and there's no media left in the country capable of putting the pieces together; and the usgbc would never want to upset its leed money machine by actually decertifying a project or turning in an arch or engineer for submitting patently false or exaggerted info. So everyone's happy with the usgbc. Except people with integrity who don't care about upsetting the whole scam. Like this guy Gifford--an "unlettered" engineer who has less to lose than all of those arch and engineers who are now all broke and hanging onto green as their one last hope of getting a project in a completely broken economy.
Mr. Markham-
THANK YOU! You did miss one angle though, Developers to sue would have to allege economic harm. On discovery they would have to open their books. Since the term "Honest developer" is an oxymoron, they would then open themselves to all kinds of prosecution. Only the honest can effectively sue a crooked institution.
The sooner we can get rid of LEED and get onto real performance based standards for building techniques that have proven effective over time, the sooner this country can hope to be energy efficient and sustainable
"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?"
Do the developers care if the tenants/owners are paying higher energy bills?
"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?"
Does the Fed gov't. actually follow through with monitoring the energy performance of it's buildings? If it does, and it saw poor performance, would the Fed gov't. actually admit that they made a mistake?
"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?"
Because the general public has been green-washed to believe that "LEED AP" on your business card makes you legit. (Much the same way having "AIA" on your card "means" that you are an architect.) It was worth the $200 to get a couple more warm bodies through the door.