Henry Gifford Sues USGBC Over Fraud, False Advertising, Racketeering!

My good friend Stephen Del Percio over at the Green Real Estate Law Journal just broke the fact that perennial LEED critic Henry Gifford has filed a class action suit on behalf of "consumers, taxpayers, and building design and construction professionals" against the USGBC for:

1. monopolization through fraud,
2. unfair competition,
3. deceptive trade practices,
4. false advertising,
5. wire fraud, and
6. unjust enrichment.

Wow...

A full copy of the filing is available on Stephen's website (direct link here), and from what I can tell the vast majority of the allegations are based on claims the USGBC has made about energy efficiency tied to the (much discussed) NBI study about performance of early LEED buildings, and their failure to overturn the (also much discussed) certification of the Northland Pines High School when it was appealed. Essentially he appears to be claiming that the USGBC is fraudulently representing both that LEED buildings save energy and that their review process adequately provides the 'third-party verification' that they claim. As a result of these deceptions, we the consumers, the taxpayers, and designers have all been duped into using (and training for) LEED. This has allowed the development of a sort of rating system monopoly that damages other systems like EnergyStar, Passivhaus, etc.

Surprisingly relevant given past post images...

For the record, I'm not an attorney, so the above and following opinions about this case are worth likely next to nothing. My first take is that, as before, Henry Gifford has taken a few valid complaints with the LEED system, sprinkled in some questionable logic, and overblown these complaints to epic proportions. I'll suggest checking in with the Green Real Estate Law Journal and the Green Building Law Update for more on this in the future, as it's a topic I'm sure they'll jump on in the coming weeks. I'm extremely interested to hear your take on this, and would strongly encourage everyone to at least skim the claim itself before responding.

Further Reading

• Breaking: Henry Gifford Leads Class Action Lawsuit Against USGBC in Southern District of New York - Green Real Estate Law Journal 10.12.2010 - Very brief post first highlighting suit and linking to original claim.
• USGBC, LEED Targeted by Class-Action Suit - Environmental Building News* 10.14.2010 - Much more in-depth profile of the claim with commentary from USGBC representatives, Gifford, and others.

I'll be adding additional sources of information as they're discovered.

*FULL DISCLOSURE: Environmental Building News is owned by Building Green, Inc., which is a sponsor to this site.

LEED-ND Study Examines Entire Metro Area

I've been looking at LEED for Neighborhood Development (LEED-ND) in some detail lately, as evidenced by posts examining the system's fees and also my first experience planning the certification process. While I'm starting to get a feel for the system, my efforts pale in comparison to the work of Brendon Slotterback over at NetDensity.net:

Areas Meeting LEED ND Minimum Eligibility Requirements in the Twin Cities

Brendon's apparently excellent GIS mapping skills allowed him to progressively eliminate areas ineligible for LEED certification due to non-compliance with various Smart Location and Linkages category prerequisites, and the result is the chart above of eligible areas across the entire Minneapolis/St. Paul metropolitan area. You can read all of the four part series by clicking the links below or through this summary page on his website.

• Part 1: Includes a brief overview of LEED-ND and the HUD decision to begin scoring grant, and then creates a map excluding all areas in the region that do not meet wetland/floodplain avoidance, agricultural conservation, and endangered species habitat protection requirements (i.e. examines compliance with SLLp2-SLLp5).
• Part 2: Focuses almost exclusively on the SLLp1, Smart Location and Linkages prerequisite and its myriad requirements.
• Part 3: Examines areas that may technically be eligible for certification but have strong market barriers due to poor connectivity or low density in the surrounding areas.
• Part 4: Brings it all together and looks forward to zoning and policy recommendations that would help foster greater adoption of these practices in the future.

Does LEED-ND Get It Right?

I found Brendon's site via commentary from Kaid Benfield on his own blog over at the NRDC. He was particularly interested in the ability for small towns and rural areas to meet the SLL requirements, and judging by this post he feels that the system works.

These posts led to a lively discussion on a local planning list I subscribe to, where one respondent was upset that a local new urbanist community planned by DPZ, Habersham, would not qualify due to the fact that it's not an infill project surrounded by dense development. It's an excellent development internally, not far enough away from the existing town to in my opinion be considered contributing to sprawl, but it is located on a greenfield surrounded by river and marsh on one side and not much other than forests on the other. Our conversation happened to align with a visit from Steve Mouzon, author of The Original Green, who summed up the discussion well:

Currently, LEED-ND is based primarily (but not entirely) on the assumption that most meaningful interactions occur outside your neighborhood. So Pienza would fail. As would Key West. As would any number of New Urbanist places, including Habersham... LEED-ND doesn't "trust" very much that the developer will, over time, be able to capture very much interaction... LEED-ND doesn't have very good accounting of time at this time.

It’s clear to me that LEED-ND requires not only good development practices but is also fairly strict about where such development occurs. I see this as a positive but am very interested to hear your thoughts. Should Key West, a town that could literally be wiped off the map if sea level rise predictions come true, be a place that LEED-ND should foster? Should LEED-ND be more forgiving if what’s developed is significant enough to create its own town center, or should we only encourage growth of existing town centers? Please share your thoughts by leaving a comment!