Glass Experts Not Surprised With USGBC Lawsuit Dismissal
August 22, 2011

By Sahely Mukerji

Given that energy saving is not the sole focus of the Leadership in Energy and Environmental Design (LEED) program, the glass industry's LEED accredited professionals (AP) expressed no surprise that the lawsuit against the U.S. Green Building Council and LEED didn't hold water in court.

On August 16, the United States District Court in New York City dismissed the $100 million lawsuit brought against the USGBC and its LEED rating system. Henry Gifford, a New York-based mechanical systems consultant, and other plaintiffs, brought the lawsuit in October 2010, alleging that USGBC falsely advertises that LEED guarantees energy savings in LEED-certified buildings. Following USGBC's motion to dismiss the case and a court hearing of oral arguments in July 2011, the judge ruled that none of the plaintiffs in the action had alleged or could allege any legal interest to be protected by their lawsuit.

"I am pleased with the court's decision," says Valerie Block, LEED AP and senior marketing specialist for DuPont Glass Laminating Solutions in Wilmington, Del. "The LEED rating system is not exclusively focused on saving energy. The program does acknowledge the contribution of a high-performance building envelope, but there are many other ways of addressing sustainability through credits that are not focused on energy. As far as the glass industry is concerned, designers of LEED projects continue to select glass as a building material, and I would predict that it will continue to be a material of choice in the future."

David Warden, LEED green associate and brand manager of enerGfacade Products for YKK AP America in Austell, Ga., agrees: "Energy performance is a key component to LEED certification, allowing the greatest amount of credits (19) in that area," he says. "But a building can still obtain LEED certification if it focuses on other areas of the certification process. Therefore, not all buildings that are LEED-certified or constructed will necessarily obtain energy efficiency improvements to their greatest potential."

LEED is a voluntary program intended to improve the environmental performance of the building's footprint, and it does that, without doubt, Warden says. "While LEED does stress energy efficiency, there is a great deal more to the program. It is also the most widely accepted methodology for 'green' buildings, and it is almost independently responsible for the overwhelming change in the collective conscious of architects and other influencers in the built environment today."

Says James Bogdan, LEED-AP and manager of sustainable market-based initiatives at PPG Industries of Pittsburgh: "Initial and ongoing energy consumption is a key driver for a LEED building. As with any transformative market initiative, there will always be challenges and subsequent improvements. From my perspective, mechanical engineers will be going the extra distance to make sure products that impact the building's energy consumption are actually providing a benefit so that the gap between the modeled and actual energy consumption becomes more accurate."

That said, Arlene Z. Stewart, president of AZS. Consulting Inc. in Gainesville, Fla., pointed out that the dismissal leaves room for future suits to be brought against LEED.

“It’s interesting that it matters who can bring such a suit,” Stewart says. “The dismissal order cited ‘The strong categorical test [that] provides that the plaintiff must be a competitor of the defendant and allege a competitive injury.’ Given this position, it will be difficult for any business or individual to make a case against USGBC. Rather, I think it plainly places focus on the individual professional.”

The dismissal is a cue that the LEED AP credential is nothing more than a starting point, Stewart says. “Remember, advertising laws hold the claim maker responsible for both expressed and implied claims, which is why disclaimers are so important,” she says. “As it stands today, the LEED AP credential conveys a tacit perception that the holder has a better grip on ‘green’ than someone who is not. Many sales and technical people obtain the credential to differentiate themselves in the marketplace. The problem is they learn no more than what is on that test. However, proving competency on a particular set of criteria is not the same as having a broad knowledge base. In many ways, the dismissal provides your better-educated competitor with a roadmap for how to attempt to recoup lost sales through proving that you had limited knowledge when you didn’t expressly indicate your expertise was only limited to LEED criteria.”

And although this class action suit was dismissed, an individual lawsuit between Gifford and the USGBC still remains, Warden points out that "Gifford claims that USGBC has falsely claimed that LEED-certified buildings are more energy-efficient," he says. "The legal answer to that argument will evolve with the litigation."

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