Energy-efficiency consultant Henry Gifford, whose lawsuit against the U.S. Green Building Council (USGBC) and its LEED rating system was dismissed last week by a New York District Court judge, may not appeal the ruling or bring further legal action against USGBC. Considering the USGBC response to the dismissal – “We’re grateful that the Court found in our favor so we can give our full attention to the important work before us,” the group said in a statement – it seems fair to say that the USGBC hopes that’s the case.
But the reality is USGBC and everyone interested in energy-efficient buildings know that the judge’s order is just one element of an ongoing discussion. Filed last October, Gifford’s lawsuit, whatever its flaws, helped propel a longstanding debate among builders, building scientists, architects, and energy-efficiency consultants about the merits of the LEED rating system, particularly its standard for rating the energy performance of buildings and the weight that energy performance is given in a project’s overall LEED score.
As amended last February, Gifford’s complaint alleged that USGBC engaged in false advertising, deceptive practices, and illegal monopolization. The suit, which sought an injunction against USGBC and monetary damages for plaintiffs’ lost sales and profit, said that USGBC misrepresented the performance of LEED certified buildings and, to support its performance claims, altered the results of a 2008 study by USGBC and New Buildings Institute that compared predicted energy use in certified buildings with actual energy use, and with a national average for existing buildings.
Overlapping interests, but distinctly different services
However, Judge Leonard Sand, of the U.S. District Court, Southern District of New York, focused on whether Gifford and the suit’s other plaintiffs demonstrated they were competitors of USGBC’s certification program and therefore had standing to claim they were harmed by USGBC’s allegedly false advertising and deceptive practices. In essence, the judge ruled that Gifford and USGBC are in different businesses – the former as a consultant to clients who want to maximize or improve the energy-efficiency performance of their buildings, the latter as a nonprofit that rates buildings based on a variety of criteria, including energy efficiency.
The commercial interests of both parties, the judge added, remained separate, whether the plaintiffs are working on a project aiming for LEED certification or a project pursuing nothing more than better performance.
Gifford told EBN that he is “sick and tired” of spending time and money on litigation, though he hadn’t ruled out an appeal. In any case, his beef with USGBC seems to hinge mainly on what he believes is USGBC’s alteration and exploitation of the results of the USGBC/New Buildings Institute study, and on USGBC’s failure to verify the energy efficiency performance LEED-certified buildings. On those and a number of other, related issues, it’s unlikely we’ve heard the last from Gifford.