 
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.
Its 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 didnt 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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