LEED Certification: A New Front of Environmental Litigation?
By Kimberly Klein
The Leadership in Energy and Environmental Design (LEED) Certification Program provides building owners and operators with a framework for identifying and implementing practical and measurable green building design, construction, and operation and maintenance solutions. LEED certification promotes sustainable sites, water efficiency, energy efficiency, and indoor environmental quality.
Commercial and residential buildings account for roughly 40% of primary energy consumption and the International Energy Agency estimates that by 2030, building energy demand will account for about half of the total investment in energy supply. LEED commercial buildings use 28% less energy, on average, than conventional structures: savings rise to 33% (for green certified) and up to 50% (for newly built LEED gold and platinum office buildings).
The Intergovernmental Panel on Climate Control (IPCC) determined that cost-effective energy efficiency measures in buildings could reduce emissions by 30% from the 2020 baseline and that these measures would be cost negative, meaning they would have a positive return on investment, through the reduction of operating costs. LEED certification promotes cost-effective energy efficiency measures, such as the following: use of solar shading and advanced day lighting, renewable energy systems, improved thermal envelope (improve insulation and windows), natural ventilation systems (as opposed to forced air heating and cooling), reflective exterior surfaces, advanced heating and cooling technologies, building energy management systems, and efficient lighting systems. Due to raised awareness of serious risks from climate change and the role of green-house gas (GHG) emissions in global warming, all buildings could one day be subject to environmental regulation of GHG emissions. In light of the IPCC studies mentioned and this raised awareness, over 900 mayors in U.S. cities and towns have signed the U.S. Conference of Mayors Climate Protection Agreement, in which they allege their promise to reduce GHG emissions from their communities to seven percent below 1990 levels by 2012. This is a sign that regulation of GHG emissions is the future of our country.
With that being said, the now voluntary LEED certification program may one day be a mandatory code, which will ultimately lead to litigation challenging the validity of the science supporting this program. Although currently a voluntary certification program, there has already been a case filed against the U.S. Green Building Council (USGBC), who developed the LEED program, alleging, amongst other claims, “a violation Section 43(a) of the Lanham Act, which creates a statutory tort of false representation of goods or services in commerce.” The Plaintiffs claim a “USGBC press release dated April 3, 2008, which states that the results of a 2008 study ‘indicate that new buildings certified under the [USGBC’s] LEED certification system are, on average, performing 25–30% better than non-LEED certified buildings in terms of energy use,’” is false. Additionally, the Plaintiffs posit that, “because the statement misleads consumers… it diverts customers from Plaintiffs’ businesses to LEED accredited professionals. Thus, Plaintiffs allege that they have suffered or will suffer ‘a loss of consumer confidence, sales, profits, and goodwill, along with the cost of remedial corrective consumer education,’” as required for a claim under the Lanham Act. The United States District Court for the Southern District of New York did not find such standing, and granted the Defendant’s motion to dismiss, because the Plaintiffs “plainly do not compete with USGBC in the certification of ‘green’ buildings or the accreditation of professionals.”
This was the first case questioning the LEED certification program, but by dismissing this claim based on standing, the court never had to address whether USGBC in fact is misleading consumers. If the LEED certification program, or something like it, becomes mandatory for new building development, we can certainly expect more litigation like this.
 What LEED Is, U.S. Green Building Council (Feb. 21, 2012), http://www.usgbc.org/DisplayPage.aspx?CMSPageID=1988.
 Aggressively Promote Energy Efficiency, Institute for 21st Century Energy, (Feb. 21, 2012), http://www.energyxxi.org/aggressively-promote-energy-efficiency.
 Int’l Energy Agency, Technology Roadmap, Energy Efficient Buildings: Heating and Cooling Equipment (2011), http://www.iea.org/papers/2011/buildings_roadmap.pdf.
 Cathy Turner and Mark Frankel, Energy Performance of LEED for New Construction of Buildings, New Buildings Institute (2008), http://www.usgbc.org/ShowFile.aspx?DocumentID=3930.
 Climate Change 2007: Working Group III: Mitigation of Climate, Intergovernmental Panel on Climate Change (Feb. 21, 2012), http://www.ipcc.ch/publications_and_data/ar4/wg3/en/tssts-ts-6-2-mitigation-technologies.html.
 See supra note 1.
 U.S. Conference of Mayors Climate Protection Agreement, U.S. Conference of Mayors, http://www.usmayors.org/climateprotection/list.asp.
 Gifford, et al. v, U.S. Green Building Council, et al., 10 Civ. 7747 (S.D.N.Y. 2011).