As multiple nor’easters bore down on the East Coast in the last 10 weeks, architects and engineers worried about more than the physical impact to their projects. The storms also brought an increasing concern about the liability risks of failing to prepare for climate change and sea-level rise.
While designers have an ethical obligation to exercise the appropriate “standard of care” when advising clients, it is unclear how that legal standard applies to design choices that could be affected by climate change. Every state has its own case law and statutes of repose setting deadlines when designers are no longer liable for design failures. The Trump administration added to the murkiness last August when it moved to strip climate considerations from infrastructure planning guidelines.
The American Society of Civil Engineers is still adopting its own standards, says Michael Sanio, ASCE director on sustainability. Sanio says their code of ethics also puts public safety first. “Taking into account the best science is a responsibility” he says, “designing to existing codes is insufficient. It’s tough when an employer or client is asking for things counter to code. … It’s your responsibly to let your client and owner know the risk.”
Jay Wickersham, president of the Boston Society of Architects, says designers might not be off the hook if they don’t advise clients about design options to mitigate climate change risks. Wickersham, an architect and lawyer who is the former assistant secretary of environment affairs in Massachusetts, says compliance with the law is one of the foundations of the professional standard of care, but the law is “the floor, not the ceiling. There can be circumstances in which design professionals know more protective measures beyond the building code and zoning code and could be potentially held liable.”
Don Ghent, principal and design realization leader at Gensler DC, says his firm shares climate-related research with owners before agreeing “on the best approach for that particular project.” He says many owners want to go above code. He also says insurance companies will likely start guiding owners to ensure they meet the best standard. “Everyone is always looking to nullify risk,” Ghent says.
Georges Pigault, vice president of architects and engineers professional liability for Liberty Mutual, says firms, in general, shouldn’t solely rely on ever-evolving codes, legal standards and flood maps. He says they should consider industry, social and economic trends, along with the project’s scope, life cycle and delivery method.
Pigault says it’s important to understand the client’s expectations so that the project team can take a collaborative approach to risk management.
Firms should document those understandings and also consult with insurance brokers, carriers and consultants to help stay consistent with the standard of care, Pigault adds.
“At the end of the day you have to consider changes in use, or changes in environment in design conversations and decisions,” Pigault says. “It’s about awareness and understanding the trends and really the knowledge of what is happening today, with the anticipation you can have change over time.”