Climate change is rapidly becoming a lightning rod of exposure for the design community. This article explores the impact this phenomenon is having upon the way engineers practice and the standards by which they are judged.
There are a variety of ways to describe climate change and its impact on the built environment. Whatever definition is used, the tension between existing design standards and professional practice presents a number of challenges for the 21st century engineer.
As rising sea levels continue to threaten our coastline, design professionals are developing innovative ways to manage these impacts. For example, at Clippership Wharf in East Boston, the developers replaced an existing concrete seawall with a shoreline comprised of tidal pools and salt marshes. These natural adaptive features function as a buffer that helps mitigate coastal flooding. To address the rising average annual global temperature, designers are placing greater emphasis on passive strategies such as building orientation, fenestration, and the use of high-performance building materials.
The impact of nor’easters is no longer limited only to coastal concerns, as their effects are also felt inland with flooding rivers, streams and tidal wetlands. These storms have raised public safety concerns with regard to the siting and design of important infrastructure components. Astute designers are beginning to factor these concerns into their designs through the inclusion of oversized detention ponds, elevated first floors, and the relocation of mission-critical equipment out of a building’s basement. Unfortunately, governmental codes and standards continue to lag behind such design initiatives. This disconnect leads to uncertainty in the design community as to how to define the professional standard of care without the benefit of homogeny.
In the context of climate change, how do the various codes’ failure to keep pace with an engineer’s standard of practice affect a designer’s legal exposure?
One variable in the malpractice equation involves the foreseeability of harm suffered by the injured party. When applied to a professional malpractice setting, this concept provides that an injured claimant may not recover damages in a negligence claim against a design professional unless s/he can demonstrate that both the injured plaintiff and the harm were reasonably foreseeable.
A recent report published by the Conservation Law Foundation illustrates how the concept of foreseeability factors into a designer’s exposure for failing to properly consider resiliency.[1] Deanna Moran, one of the contributing authors, explains that design professionals may be liable for “failing to act reasonably in the face of ascertainable risk….Buildings and other physical assets are being designed and built based on climate patterns of the past rather than those we see now or anticipate imminently.”[2] Given the notoriety of impacts surrounding the effects of climate change, a designer’s ability to argue that neither the claimant nor his/her injury were reasonably foreseeable is becoming increasingly difficult.
The ability to precisely define a professional standard of practice to address the impacts of climate change will remain a challenge for the foreseeable future. We do know that relying solely upon existing codes that only consider historical weather patterns is no longer sufficient. In the absence of exacting code guidance, today’s engineer must independently consider the effects of sea level rise, flooding, heat, freezing conditions, excessive wind and the like when developing a conservative design.
[1] Climate Adaptation and Liability: A Legal Primer and Workshop Summary Report; by the Conservation Law Foundation in collaboration with the Boston Green Ribbon Commission (January 2018)
[2] Rising Seas Could Bring A Flood Of Lawsuits, by Deanna Moran; Banker & Tradesman (March 25, 2018)
Joseph Barra
Joseph A. Barra, Esq. is a construction attorney in the Boston office of Robinson + Cole LLP.
