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LEED Critic Files Class Action Lawsuit Against USGBC PDF Print E-mail
Written by Paul Nutcher   
Tuesday, 19 October 2010 13:45

A public critic of LEED has filed a class action law suit against the USGBC and its founders personally on behalf of "consumers, taxpayers, building design and construction professionals," according to several published reports.

Henry Gifford, a mechanical systems designer whose criticisms of the green building rating system have been published in the New York Times, alleges that USGBC's actions have essentially been fraudulent, false advertising, and go against anti-trust laws, and potentially violate the RICO laws, in the Oct. 8, 2010, filing with the U.S. District Court for the Southern District of New York.

His theory is that the U.S. Green Building Council (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 plaintiffs in this case are 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.

According to the Environmental Building News (EBN), Gifford's critiques rely heavily on a 2008 study from New Buildings Institute (NBI) and the USGBC to support his allegations. The study is, to date, the most comprehensive look at actual energy performance of buildings certified under LEED for New Construction and Major Renovations (LEED-NC), according to EBN. The NBI and USGBC study found that LEED buildings are on average 25% to 30% more efficient than the national average. However, soon after Gifford issued his own report, in which he concluded that LEED buildings are on average 29% less efficient. While the National Research Council of Canada supported NBI's findings, the methods in the study have been questioned by EBN.

It remains to be seen whether or not 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 adequately 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.

First of all, according to Shari Shapiro writing for Greener World Media, as a general proposition, taxpayers do not have standing to sue, and: "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."

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 Gifford, suing on his own behalf. Was Gifford harmed by USGBC's actions? Probably not, Shapiro added.

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

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 Gifford is involved in a number of Passive House projects (passivhaus is a competing system for energy efficient buildings). If Gifford is the last plaintiff left standing, it will be a much harder lawsuit to bring, let alone win, Shapiro concluded.

 

LEED, sustainability consulting, green marketing, green building, green consultants, public relations, advertising, branding, LEED AP, USGBC, construction, architecture, building information modeling, Passivhaus, LEED-NC, LEED-Homes, green advertising agency, Green Apple Group, Green Apple PR

 


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Class Action Lawsuit Filed Against USGBC

Thu Oct 14, 2010 1:00am EDT

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.

Recently, 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 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 adequately 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 a.m. 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.

!--pagebreak--

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 Gifford, suing on his own behalf. Was Gifford harmed by USGBC's actions? Probably not.

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

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 Gifford is involved in a number of Passive House projects (passivhaus is a competing system for energy efficient buildings). If 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 lawsuit fails, are there other plaintiffs waiting in the wings? For my next post -- assuming the class is certified, do the claims have any merit?

Shari Shapiro, J.D., LEED AP, is an associate with Obermayer Rebmann Maxwell & Hippel LLP in Philadelphia. Shari heads the company's green building initiative. She also writes about green building and the law on her blog a www.greenbuildinglawblog.com, where this post originally appeared. 


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Oct 14, 2010 1:39pm EDT

Given that this was foreseeable, the value in pursuing it may actually be immunization against other plaintiffs. I hope the class is certified, and I look forward to seeing it play out.

marchitect Report As Abusive
Oct 14, 2010 1:52pm EDT

Gifford is not “self-proclaimed”. He is the real deal. Underestimating him is a big mistake.

Know-things Report As Abusive
Oct 14, 2010 3:17pm EDT

From EBN: “Shapiro, assuming that Gifford has benefited from the green building wave, even questions whether Gifford has even been harmed, as he would have to be to take part in the lawsuit. However, Gifford told EBN that there’s no question about that. “Nobody hires me to fix their buildings,” he said. Though not an engineer, Gifford is respected in energy efficiency circles for his technical knowledge.”

My thoughts: He is not a licensed engineer – maybe that is why people don’t hire him to fix their buildings. Or maybe it is because he only works on residential buildings, boilers in particular, in New York City.

His claims are based on false pretenses – LEED certification does not guarantee building performance. The energy portion of the certification is based on an energy model which compares the design building against a minimally compliant ASHRAE 90.1 Appendix G building. Energy modeling, which Henry hates, is a comparative tool during the design phase to compare building options based on the drawings, specifications, control sequences, and a fixed set of assumptions about building use. If these assumptions change, especially the operating schedules, and the ultimately do, the model can not stand as a true estimate of the building performance. In the end, it is the building tenants and operators who determine how the building performs.

All that being said, Henry does have one point. There are buildings which consume more energy than the models predicted. And we need to find out why. And the new version of LEED requires actual performance data for several years after construction to ensure the building was built and is operating as designed.

sam.mason Report As Abusive
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Last Updated on Tuesday, 19 October 2010 18:19
 
EPA to Help Green Five Capital Cities PDF Print E-mail
Written by Paul Nutcher   
Tuesday, 12 October 2010 19:39

Five state capitals have been selected to receive design and planning assistance in pursuing smart growth and green development projects as part of the Greening America's Capitals program. Private sector experts will visit Boston; Jefferson City, Mo.; Hartford, Conn.; Charleston, W.Va.; and Little Rock, Ark., and consult with city planners and leaders to facilitate each city's sustainable development goals.

Greening America's Capitals is a project of the Partnership for Sustainable Communities agreement forged between the EPA, the U.S. Department of Housing and Urban Development, and the U.S. Department of Transportation. Its ultimate goal is to inspire state leaders to expand sustainable development throughout their jurisdictions to yield unique neighborhoods that provide a variety of social, economic, environmental, and public health benefits. Beginning in 2010, the program will provide assistance to three to five communities per year.

The program will fund a team of urban planners and landscape architects to travel to each city and support them in developing visions of environmentally friendly communities that incorporate green building and green infrastructure strategies, as well as advise them on creating implementation plans.

Each city submitted a proposal outlining its project and need for design assistance.

  • Boston—The city requested help in greening its City Hall Plaza and City Hall building. The plaza's seven acres currently fail as a public green space, being mostly paved in brick and incorporating little vegetation, so the city plans to create well-defined edges and entrances, improve bicycle access and parking, connect the plaza to existing streets, increase trees and other plants to help with stormwater management, and support the green enhancements planned for City Hall and nearby buildings.
  • Charleston, W.Va.—The city plans to redesign Slack Plaza, a focal point of Charleston's downtown and the site of a major bus transfer hub, as part of a significant design shift in the district's heart. Charleston's leaders want to establish a common vision for Slack Plaza that will transform it into a multi-modal transportation hub and well-used town square, incorporating green space, establishing a sense of place, and improving safety.
  • Hartford, Conn.—The city seeks assistance in creating a redevelopment strategy for a mile-long stretch of Capitol Avenue that connects to nearby residential and retail areas and also includes the state capitol and legislative buildings, the state library, the Supreme Court, and the state armory. Redesign plans focus on the overall aesthetic character of Capitol Avenue and on public open spaces, including parks, state building grounds, green street improvements to manage stormwater, and pedestrian access and environment improvements.
  • Jefferson City, Mo.—The city plans to develop aesthetically and functionally valuable landscape architecture designs for an area of the city that is prone to flooding and is largely forgotten and abandoned: the Wears Creek and Millbottom sections. The goal is to benefit both water quality and the surrounding community by improving public access to the Missouri River, reclaiming and redeveloping brownfields and vacant land, and revitalizing the community.
  • Little Rock, Ark.—The city requested help in developing streetscape improvements for the revitalization of its Main Street corridor. Little Rock's redevelopment plans focus on key activity centers along this strip, which connects to another recently revitalized neighborhood, with a particular focus on creating new pocket parks and reusing vacant parking lots to encourage greater pedestrian activity that could support ground-floor retail businesses and a future trolley line.

For more information on the Partnership for Sustainable Communities' Greening America's Capitals project, visit www.epa.gov/smartgrowth/greencapitals.htm.


green marketing, green advertising, green apple consulting, green apple consultants, green apple pr, LEED, Sustainable, Green Apple Group

Last Updated on Tuesday, 12 October 2010 23:02
 
Energy Tax Incentive Legislation Targets Building, Industrial Energy Efficiency PDF Print E-mail
Written by Paul Nutcher   
Friday, 01 October 2010 20:48

Senate Energy & Natural Resources Chairman Jeff Bingaman (D-N.M.) and Sen. Olympia Snowe (R-Maine) teamed up on Wednesday to introduce legislation providing tax incentives to the energy sector, The Hill reports.

The bill, the Advanced Energy Tax Incentive Act of 2010, focuses on building and industrial energy efficiency, domestic manufacturing, emerging clean energy technologies and carbon mitigation, the Washington Independent Reports.

The legislation would enables home and business owners to defray upfront costs of investing in energy-saving technologies, including performance-based tax credits for whole home retrofits.   It would make $2.5 billion in tax credits available to manufacturers dealing with clean renewable energy or enhanced energy efficiency products.

The measure would also establish a $1 billion tax credit program to enable domestic manufacturers to undertake energy-saving measures that advance their competitiveness, and facilitate the growth of renewable electricity by creating a tax incentive for energy storage systems.

The bill would also revamp the tax credit for carbon capture and storage, provide credits to promote off-shore wind production facilities and the development of domestic fuels derived from algae.

 

Last Updated on Friday, 01 October 2010 20:51
 
New Green Jobs Growing, BEPN Survey Shows PDF Print E-mail
Written by Paul Nutcher   
Wednesday, 14 July 2010 20:36

The HawkEye Green Jobs Index®, published by Building Energy Performance News (BEPN), accelerated during the second quarter of 2010 reaching a new high of 237.32*, by increasing a whopping 84% over the same period a year ago. The index tracks new openings for green jobs nationwide.

This marks the fifth quarter in a row that the HawkEye Green Jobs Index® has experienced sequential double digit growth over the previous quarter (up 19% over Q4 2010), indicating an ever-increasing demand for people with skills and experience in the areas of alternative energy, sustainability, energy efficiency and conservation.

Employment opportunities appear to be growing at a particularly high rate in the area of energy efficiency and conservation. New job postings in this area saw an increase of 24% during the second quarter of 2010 over the first quarter. More remarkably, job openings in energy efficiency and conservation jumped by 120% compared to the same period in 2009.

The growth in green jobs also appears to be significantly higher than the rest of the job market. The Monster Employment Index, a measure of overall U.S. online job opportunities, reported a year-over-year growth of 21% compared to the 84% annual growth in green jobs based on the HawkEye Green Jobs Index®. The Monster Employment Index is published by Monster, one of the largest online job boards. Also when compared to the previous quarter, The Monster Index was up by 12%, while the HawkEye Green Jobs Index® rose by 19%.

There was a slight drop in green job postings in the month of June 2010 compared to May 2010. This is consistent with the monthly data reported by both Automated Data Processing, Inc. (ADP) and the U.S. Bureau of Labor Statistics, which show that private employers added fewer jobs in June than in May. In spite of this, the employment picture for green jobs continues to look bright.

*The HawkEye Green Jobs Index® was developed by Buonicore Partners, LLC and reflects new green job openings searched daily from over 100 Internet job boards, and base-lined against January 2009. See BEPN's HawkEye green jobs information center at (www.bepinfo.com/jobs/index.aspx) for more on this index and the market for green jobs.

 

Reprinted from Building Energy Performance News

Read more here: http://www.bepinfo.com/ViewArticle.aspx?aid=100713001&from=gateway&cce=31467

 

Tags: LEED, Green Jobs, Solar Jobs, Green Building, Energy Efficiency, Sustainability, Green Apple Group, U.S. Green Building Council, ICC 700, GreenGlobes, Life Cycle Analysis

Last Updated on Wednesday, 14 July 2010 20:42
 
Feed In Tariffs Are Legal in U.S. Report Says PDF Print E-mail
Written by Paul Nutcher   
Saturday, 20 February 2010 14:57

Several recent reports have concluded that feed in tariffs are legal for states to implement, countering their critics stance that they are illegal under current regulatory law in the United States.

The National Renewable Energy Laboratory (NREL) issued a report in January providing guidance to states wanting to implement feed in tariffs.....

Read more here: http://www.renewableenergyworld.com/rea/news/article/2010/02/nrel-feed-in-tariffs-legal-in-us-when-certain-conditions-met

Last Updated on Saturday, 20 February 2010 15:09
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