Three Steps Engineers Should Follow to Reduce the Risk of Climate-Change-Related Litigation
“Three Steps Engineers Should Follow to Reduce the Risk of Climate-Change-Related Litigation,” authored by Attorney Jessica Mederson and Climate Reality Leader Monika Serrano, was originally published in Structure magazine’s June 2023 issue.
Flooding, heat waves, rising sea levels, and the associated news about these effects of climate change are enough to make anyone feel hopeless about what can be done. The National Oceanic and Atmospheric Administration (NOAA) estimates that Americans experienced twenty separate multi-billion-dollar weather and climate disasters in 2021 alone, costing $145 billion. Last year, Hurricane Ian—estimated to be the costliest Florida storm since Hurricane Andrew—had storm surge losses estimated to cost between $28 and $47 billion. One industry, however, is poised to make a profound positive impact in the face of this dire news: engineers. Engineers have the knowledge and the skillset to reduce the risk that their projects will face climate-change-related risks if they incorporate the three basic steps below into their project work.
Engineers are at the forefront of recognizing and understanding the threats posed by climate change and the changes that need to happen in the design and construction processes. The World Federation of Engineering Organizations (WFEO) has issued a Declaration on Climate Emergency, stating “The crises of climate breakdown are the most serious issues of our time. Our major infrastructure systems of transport, energy, water, waste, telecommunications, and flood defenses play a major part, accounting for a vast portion of energy-related carbon dioxide (CO2) emissions while also having a significant impact on our natural habitats.” As a result, the WFEO has pledged, among other things, to “apply, and further develop, climate mitigation and adaptation principles as key measures of our industry’s success demonstrated through rating systems, awards, prizes, and listings.”
“Extreme event attribution” is the science linking extreme weather events to climate change. This field has developed over the past two decades with increasingly standardized methodologies and extensive published literature. Climate change influences the intensity, frequency, and length of weather events. The American Meteorological Society (AMS) researches the attribution of weather events to climate change and publishes an annual review of extreme events and their connection to climate change. The AMS’s latest report confirms that extreme weather events are driven by climate change and that the risks are increasing. While extreme heat, drought, and other extreme weather events are gaining attention, rising water levels are the most pressing climate change risk facing many communities today.
Global sea level has risen approximately 6.7 inches in the past century, with regional sea level rise being more or less than that average, depending on several factors. In parts of the US Northeast, sea levels have already risen by 16 inches, which is expected to continue. And inland areas are not immune from climate-change-related water damage. The Third National Climate Assessment reported that rainfall events have become heavier and more frequent. The increase in rainfall has been most significant in the Northeast, Midwest, and Upper Great Plains—with increased flooding in those same areas. Inland flooding is estimated to be the most costly of severe weather events, with an annual average price tag of $6.9 billion. Combine those more intense rainfalls with the non-permeable surfaces that characterize modern towns and cities, and we see increased flooding. Urban flooding, with its unique challenges and high stakes, is a pervasive problem, with an urban flooding event occurring at a rate of once every two to three days over the past 25 years.
Step One: Anticipate the Impacts of Climate Change During Design
So what do these challenges mean to engineers who frequently look to building codes to set the minimum life-safety design requirements? Most building codes have not yet been written to address the consequences of climate change, mainly because codes are based on historical climate data instead of future climate estimates. Two years ago, the Federal Emergency Management Agency (FEMA) surveyed the nation’s building codes, finding that $1.6 billion in losses had been avoided since 2000 thanks to buildings designed following more stringent building codes, yet 65% of municipalities in the U.S. have not yet adopted them.
At the same time, FEMA’s flood maps can be seriously out of date, as Professor Gerrard, founder, and faculty director of the Sabin Center for Climate Change Law, has noted: “They reflect only historical conditions, not future flooding as a result of sea level rise and extreme precipitation.” Not only are the flood maps outdated, but over 40% of the United States has not been mapped. In 2020, scientists working with the First Street Foundation, a non-profit research and technology group dedicated to quantifying and communicating climate risks, identified 6 million more Americans living in areas with a substantial risk of flooding than the 8.7 million properties identified as having such a risk by FEMA.
Until there are binding government requirements, it is up to engineers and architects to understand the climate change risks that projects face and plan with future climate estimates in mind, incorporating resilience above and beyond what current building codes require. Fortunately, resilience strategies already exist and are simple. A few examples include designing thicker building envelopes to deal with extreme heat, incorporating power and water redundancy to better deal with utility interruptions, and planning for egress and ingress to the building in severe water events. “During the design phase, the expected lifetime of a structure should be determined, at least 50 years, but 100 years is a more reasonable approach. Then, local sea level rise projections need to be taken into account,” suggests Dr. Klaus Jacob, a geophysicist and emeritus research professor at Columbia University’s Lamont-Doherty Earth Observatory. For example, Dr. Jacob recommends that builders “elevate all critical equipment and locate all water-sensitive materials on top of the building.” Saltwater poses its unique challenges, corroding materials such as concrete and rebar, thereby reducing the safe life of a project.
Fortunately, more resources are becoming available every day to assist engineers with identifying local issues and incorporating resilience into their designs. For example, the Intergovernmental Panel on Climate Change (IPCC) introduced at COP27 the Global Building Resilience Guidelines. COP, short for “Conference of the Parties,” is an international climate meeting held each year by those countries that have joined the United Nations Framework Convention on Climate Change (UNFCC), which includes the US. Parties to the treaty have committed to take voluntary actions to prevent “dangerous anthropogenic [human-caused] interference with the climate system.” COP27 is the 27th climate meeting since the UNFCC treaty was negotiated in 1992.
FEMA also provides extensive hazard-specific guidance that focuses on creating hazard-resistant communities. Future climate modeling is also a growing industry, with numerous resources available. Finally, to ensure that all parties to a construction project understand their roles and responsibilities, engineers should introduce contractual language or documents similar to the American Institute of Architect’s Hazard and Climate Risk form.
Step Two: Fulfill the Standard of Care in Designing Your Project
Can design professionals be liable if they design only to existing building code requirements? A recent study found that the average value of a construction dispute in North America doubled from 2019 to 2020: jumping from $18.8 million to $37.9 million. This study found that the leading cause of disputes remained the same in 2020 as in 2019: a failure by the parties to the construction relationship (owner, contractor, architect, engineer, etc.) to understand and/or comply with their contractual obligations.
When designing buildings in the face of climate change, engineers must ask whether they are fulfilling their professional standard of care. Engineers are obligated to provide services to their clients with the degree of skill and care that would be exercised by other professionals in their industry, taking into consideration the contemporary state of the art and the region in which the professional practices. Failure to exercise that standard of care can expose engineers to legal liability. However, engineers’ standard of care is not static, as it “changes over time based on research, development, and new information.” City of Huntington v. AmerisourceBergen Drug Corp., 2022 WL 2399876, at *37 (S.D.W. Va. July 4, 2022).
The challenge for engineers, therefore, is to define the expectations under the “contemporary state of the art.” As Susanne DesRoches, Vice President of Clean and Resilient Buildings at the New York State Energy Research and Development Authority, notes, a question all engineers (and architects) must ask themselves is: “What is your legal obligation to advise your clients about future climate risks?”
Given the documented risks of extreme weather, the increase in such extreme weather, awareness in the engineering community about the risks of climate change, and the evidence that many building codes are not equipped to deal with all aspects of climate change, judges and juries may soon find that architects and engineers who design to current code provisions are not complying with the standard of care. As Randy Lewis, Vice President, Loss Prevention and Client Education for AXA XL’s Design Professional Group, points out, “Under some circumstances, merely designing to meet code requirements may still be deemed negligent if the circumstances and the applicable standard of care dictate a design solution that exceeds the code.”
Depending on the region in which a project is being built, there can be a wealth of information about the risks a project can face from climate change. First Street Foundation, for example, provides resources on various risks, including wildfires, floods, and heat. First Street Foundation has a free Risk Factor platform for non-commercial properties that the Federal government has used. Other modeling resources available include the Climate Mapping for Resilience and Adaptation tool, which was developed in August 2022 as part of an interagency partnership working under the auspices of the U.S. Global Change Research Program (USGCRP), with guidance from the U.S. Federal Geographic Data Committee (FGDC), and is designed to work with the U.S. Climate Resilience Toolkit. Climate Check and Jupiter Intelligence are other examples of available climate modeling resources. The American Society of Civil Engineers also recently published an overview of applying global climate model projections in infrastructure engineering, which walks through applying climate model projections in engineering.
Step Three: Communicate with Your Client
While some developers may hesitate to add costs to a project to address climate risk, engineers can use the existing data to explain to their clients that the significant trends caused by climate change justify initial costs associated with resilience efforts, which provide consequential benefits such as business continuity, minimized building repairs, occupant safety, and comfort, reputation, and litigation avoidance. The Natural Hazard Mitigation Saves: 2019 Report, a multi-disciplinary, multi-decade study funded by the United States Housing and Urban Development and released by the National Institute of Building Sciences, provides cost-benefit analyses that can be used to demonstrate to the client the benefits of adopting and/or exceeding current codes to address climate change issues.
As extreme weather becomes more prevalent, engineers must protect their clients and their bottom line by ensuring that their clients and designs incorporate resilience into their projects. With all the available data and resources today, it is unwise not to pay attention to climate change, adaptation, and resilience during the design phase. This increases the likelihood that a judge or a jury may force you to pay attention to climate change in the future.
