Building codes are something most of us don’t hear much about (unless you binge-watch HGTV reno shows like I do). Created to establish minimal life safety requirements for the construction/renovation of buildings, they can vary from state to state and even town to town. Building codes first became part of the American legal landscape in the 1800s, driven in large part by fears of fires spreading through cities.

As federal, state, and local governments deal with the damage done by extreme weather events in the past few years while facing even greater threats as the consequences of climate change become more severe, there is a growing realization that building codes can be vital both to improving sustainability efforts and ensuring buildings (and the occupants who live and work in those buildings) are resilient to extreme weather events.

This past summer, the U.S. Department of Housing and Urban Development issued the Resilient Building Codes Toolkit, designed to assist local governments in incorporating resilient building codes into disaster recovery and mitigation efforts. This toolkit addresses a need identified in FEMA’s survey of the nation’s building codes two years ago, which found that $1.6 billion in losses have been avoided since 2000 thanks to buildings constructed following stringent building codes, yet 65% of municipalities in the U.S. have not yet adopted modern building codes.

With all of this in mind, the announcement of the Global Resiliency Building Guidelines today at the 27th UN Climate Change Conference of the Parties (COP27) is a crucial part of the world’s efforts to both mitigate ongoing climate change and prepare for the extreme weather that has increased as a result of the climate change so far. These guidelines, developed through an international collaboration and available to everyone for free, provide a series of high-level principles for jurisdictions around the world to consider, including how to update building codes to ensure that buildings are resilient to extreme weather events—and how to implement such new building codes at the local level. This guidance may provide welcome assistance to jurisdictions wishing to update their building codes in light of climate change, as implementing updated building codes can be a challenging proposition, both on the sustainability and the resiliency front.

While governments evaluate and work on implementing new building codes, do engineers and architects—who normally rely upon existing building codes in doing their work—need to worry about designing resiliency into buildings even when the existing codes don’t require it? The answer, soon, may be yes. Engineers and architects, like other professionals, are generally required to exercise the care and skill that other professionals would exercise when performing professional services under similar circumstances. Failure to exercise that standard of care can expose professionals to legal liability. The professional standard of care, however, “changes over time based on research, development, and new information.” City of Huntington v. AmerisourceBergen Drug Corp., No. CV 3:17-01362, 2022 WL 2399876, at *37 (S.D.W. Va. July 4, 2022).

The wealth of knowledge and research we now have on climate change may just be the type of factors to force the standard of care for engineers and architects to evolve, even before building codes are updated. Extreme weather events are becoming more pervasive and destructive, and engineering and architectural groups have taken a leading position in both recognizing climate change and calling for the need to address its dangers. In addition, it is becoming less defensible to rely on historical climate data when there is extensive evidence of how the climate is changing and many climate modeling tools available to professionals. There are also numerous resources addressing how to incorporate resilience into buildings, including FEMA’s hazard building codes and, now, the global building resiliency guidelines.

In light of the evidence and information available to professionals in the built environment now, and the multiple statements made by industry associations on the climate change issue, engineers and architects should be aware that designing buildings to only comply with existing building codes could soon expose them to legal liability if judges and juries find that other similarly situated professionals would incorporate resiliency even when it is not required under the relevant building code. Incorporating resiliency into building designs, therefore, is not only good for the owners and occupants of such buildings, but also for the professionals who design them.

(P.S. While litigation these days can be costly, painful, and damaging, one bright note is that the punishments in construction law these days are not as severe as they were in Hammurabi’s day, when he ruled Babylon from 1792 BC to 1750 BC. The Code of Hammurabi, one of the world’s earliest written legal codes, provided that, “If a builder builds a house for someone, and does not construct it properly, and the house which he built falls in and kills its owner, then that builder shall be put to death.”)

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