REMINDERS ARE NOT NEEDED about the devastating impacts of climate change. The daily news takes care of that.
Yet, as claims alleging engineering firm accountability for climate change impact increasingly occur, design professionals should be reminded of their own responsibilities to factor for a changing climate—and the potential consequences if they fail to do so.
“Extreme weather events are becoming more common and more costly, which suggests that we might see an increasing number of claims that design professionals had a legal duty to design their projects to withstand such events,” says Karen Erger, senior vice president and director of practice risk management for Lockton Companies, and a member of the ACEC Risk Management Committee.
According to the National Oceanic and Atmospheric Administration’s National Centers for Environmental Information, in 2022 the U.S. experienced 18 separate weather and climate disasters that exceeded $1 billion dollars of damage, with a total cost exceeding $178 billion. In 2021, there were 20 billion-dollar damage events; 2020 had 22. For comparison, the early 2000s saw an average of about six climate events per year that caused at least $1 billion dollars of damage.
Clients and communities are increasingly looking at design professionals to create resilient structures that can better withstand future climate impacts, even when the nature of the impact—and the impact of nature itself—is uncertain. Faced with such a challenge, there are three ways to remain agile and effective amid constantly changing environmental conditions.
1. Learn constantly. Scientific understanding of climate change and impact projections are continually evolving. Engineering and design professionals should keep up with these changes and available technologies and design alternatives. Governments may revise building codes and regulations as the impacts of climate change increase. Staying informed and demonstrating awareness of changes can help avoid potential legal repercussions.
2. Communicate. No firm or professional can address the numerous challenges of climate change single-handedly. Climate experts can provide insight into how climate change may impact certain regions. Firms can use their expertise to ensure designs are tailored to client design objectives in the local environment. While ultimately clients decide a project’s scope and budget, they can benefit by being informed of climate risks and potential mitigants. Such two-way communication can inform the design process to ensure results are both climate-responsive and in alignment with client and community needs.
3. Acknowledge uncertainty. Not all future climate impacts can be anticipated. Firms should be honest with clients about the inherent unknowns of climate-adaptive design. Uncertainty is not a weakness—it is understanding the complexities involved. Including contract clauses that recognize uncertainties can safeguard firms from unforeseen challenges and potential liability as the climate changes.
The increasing instances of major climate events is a concerning trend made more so by the fact that large numbers of people are moving to areas vulnerable to the impacts of climate change. As New America’s The Future of the Coasts article states, “Over 100 million Americans live on the U.S. coasts, and people are moving there at a faster pace than ever before.” That’s despite a steady increase in the frequency and severity of coastal flooding and storms. According to research from the University of Wisconsin-Madison and the United States Forest Service, as of 2020, more than 16 million homes were in fire-prone areas in the American West—an increase from roughly 10 million homes in 1990.
Growing populations in at-risk regions present a distinct challenge for engineering and design firms serving those areas. Yet, climate-related challenges suddenly seem to be everywhere. Even the mountainous eco-leading state of Vermont suffered from $3 billion dollars to $5 billion dollars of damage and economic loss from torrential rain and flash flooding in July 2023.
Most engineers proactively design for a 100-year storm (a storm of such intensity it has a 1 in 100 chance of occurring in any given year), yet such efforts may fall short given the frequency and devastation of recent climate events. The previous 100-year storm to hit Vermont came just 10 years earlier during Tropical Storm Irene, downgraded from hurricane status by the time it reached New England. Even 500-year storm measures are proving more frequent. During Hurricane Harvey in 2017, The Washington Post noted that Houston was “experiencing its third 500-year flood in three years.”
Design professionals are required to perform their services in accordance with the professional standard of care. Erger explains: “The standard of care requires the design professional to perform their services with the skill, care, and judgment ordinarily exercised by reasonable design professionals of the same discipline providing similar services at the same time and place.”
What that standard requires is always evolving, and as our knowledge of climate change impacts grows, it may come to require design professionals to consider climate adaptation measures in their designs—or at least advise their clients of their availability.
A design professional can be found liable for negligence if they failed to meet the standard of care, which varies by location. In coastal cities, for example, the standard of care relies heavily on designing for rising sea levels and increased flooding. In the West, designs may need to account for extreme heat, drought, or wildfires.
“Extreme weather events are becoming more common and more costly, which suggests that we might see an increasing number of claims that design professionals had a legal duty to design their projects to withstand such events.”
KAREN ERGERSENIOR VICE PRESIDENT AND DIRECTOR OF PRACTICE RISK MANAGEMENTLOCKTON COMPANIESACEC RISK MANAGEMENT COMMITTEE
Traditionally, the standard of care has been measured in part by whether a design meets the local code. It is a measure that hasn’t held up to legal scrutiny. For example, in the case of Henry Tang v. NBBJ, LP, the court was asked to address liability for a child’s death caused by a fall from the third floor of the Staples Center in Los Angeles. Even though the designs of the banister and the barrier were code-compliant, the designers were still found liable.
In its decision, the court explained: “Courts have generally not looked with favor upon the use of statutory compliance as a defense to tort liability.” A code, the court stated, establishes only the “minimum standard of conduct,” but does not preclude the finding that “a reasonable person would have taken additional precautions under the circumstances.”
Code compliance issues are compounded further by the fact that many local codes that design firms rely on are based on historical data, and in some cases may be insufficient as design guidelines for future severe weather events given the rapid increase of climate change.
“A lot of things are in flux currently regarding this situation,” says Andrew Ratzkin, general counsel for POWER Engineers and co-chair of the ACEC Legal Counsel Forum. “Building codes don’t update evenly and vary across jurisdictions.”
A survey done by the Federal Emergency Management Agency (FEMA) in 2020 discovered that 65 percent of municipalities across the country have not adopted modern building codes or design standards that adequately guard against the future impacts of climate change. Some of FEMA’s own flood maps have been found to rely on historical conditions and do not account for projected sea level rise and extreme precipitation.
Building codes and flood plain maps may not reflect future risks; in some cases, engineering and design firms may be advised to look further.
“They will want to understand the proposed project’s vulnerability to climate and weather impacts and the potential need to respond to these in the design,” Erger says. “They may need to research available weather data and projections and climate models and might also retain (or have the client retain) a climate consultant to further define the risks and test the accuracy, limitations, and applicability of any publicly available data. Good documentation of these investigations can help the design professional demonstrate that they exercised reasonable care in designing the project.”
“While it will be smart for engineers to bring awareness of climate resilience considerations to a project and the client, engineers should not bear this burden alone.”
ANDREW RATZKINGENERAL COUNSEL, POWER ENGINEERSCO-CHAIRACEC LEGAL COUNSEL FORUM
From 1980–2022, the U.S. experienced an annual average of 8.1 major climate events that caused at least $1 billion in damage. However, the annual average for the last five years (2018–2022) is 18 events, indicating an increase in disastrous weather events.
In Ratzkin’s opinion, “While it will be smart for engineers to bring awareness of climate resilience considerations to a project and the client, engineers should not bear this burden alone.
“Engineers are a crucial part of the solution to adaptation challenges,” Ratzkin says. “They shouldn’t be penalized for attempting to reckon with future climate impacts on a project, or for decisions beyond their control. Otherwise, we risk promoting counterproductive behaviors and driving away the most capable firms—the ‘best athletes’—who we need to be fully engaged in addressing these challenges, from critical and difficult projects.”
For Erger, client communication and education can serve the client and firm equally well, offering both proactive and protective benefits.
“The design professional should educate the client about the potential impact of weather and climate events on the project and explain its proposed design solutions,” she says. “Careful documentation of the design firm’s recommendations and the client’s decisions will avoid misunderstandings and also serve as evidence of the fact that the risks and potential solutions were discussed with the client.”
For all the risks, responsibilities, and standard of care expectations placed on design professionals, the client—who ultimately controls a project’s design objectives, scope, and budget—brings an additional set of concerns and responsibilities to the table. Tenants or partners can ramp up expectations for climate resilience in a project; local governments could introduce more stringent regulations and codes for climate-adaptive design and increase fines or liabilities for noncompliance. So clients may seek their own protections for future liability through contracts. It is something that needs to be on the radar of every design professional, says Erger.
“Clients’ contracts sometimes call for the design professional to warrant or guarantee their design, or to meet an elevated standard of performance, e.g., ‘defect-free design’,” she says. “Agreeing to contract terms like these creates real problems for design professionals, not just because these standards are unattainable but also because their professional liability insurance generally will not provide coverage for guarantees or warranties, or for the design professional’s failure to achieve these standards beyond the normal standard of care.
“For this reason,” Erger adds, “it’s important for design firms to carefully review client-drafted contracts and do their best to negotiate such terms out of their agreements.”
Scott Burnham is a writer based in Waltham, Massachusetts. He has written for Architizer, Metropolis, Skanska, and The Guardian.