How it may affect the Profession. Part 2
Part one of this series, published in the May 2023 edition of STRUCTURE, discussed climate change in general. Part two, presented here will look at how climate change could impact an engineer’s standard of care. Most engineers are familiar with the “standard of care” – the standard that their services will be held to; failure to comply with the standard of care is negligence. As the effects of climate change intensify and our understanding of these effects evolves, it seems inevitable that there will be impacts on the standard of care.
While the standard of care is expressed slightly differently in the different design and construction standard form documents, the general concept is the same. The AIA B101, Standard Form of Agreement between Owner and Architect, provides a good example, and engineers often use similar wording when drafting their agreements:
§ 2.2 The Architect shall perform its services consistent with the professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances.
Designing for Location
Common to the formulations for the standard of care in the various industry standard form documents (AIA, EJCDC, ConsensusDocs, DBIA) is the concept that the standard of care is tied to location and circumstances. The importance of location to the standard of care is not new. For example, seismic concerns are central to many parts of California; designing for expansive clays is required in many parts of Texas. However, as the effects of climate change continue and become more frequent however, the engineer’s standard of care could include consideration of the potential future conditions at the project location. While the wording of the standard of care may not change, the environmental factors that must be considered will likely become more important.
Foreseeability and the Standard of Care
The basic question is whether the engineer has a duty to consider the future risks that could arise from climate change and adapt its design accordingly. Professional negligence (negligence in the provision of professional services) is simply a type of “ordinary negligence.” Under ordinary negligence principles, if it is foreseeable that an individual’s action or lack of action could cause damage, the individual has a duty to prevent the damage. An engineer could be found negligent and liable to third parties as well as its client if its design fails to consider and protect against foreseeable damage.
The challenge with designing for potential future conditions is that foreseeability can be subjective. Factors that could affect foreseeability with respect to climate change include news reports; vendor literature; scientific, government, and industry reports and guidelines; availability of technology and design strategies; what other engineers are doing, and code requirements in other jurisdictions.
Example of the Applicability of Guidelines
Engineers working on private projects should be aware of laws and guidelines governing public development. Future plaintiffs could argue that requirements and guidelines for public projects are admissible to attack or to buttress expert opinions on the prevailing standard of care for private development. An example would be New York City’s Climate Resiliency Design Guidelines, which identify climate change risks and appropriate resiliency interventions for City projects—such as raising equipment when building in a potential floodplain. Various other states and cities have developed or are developing similar guidelines.
Warranties with Respect to Climate Change
Nevertheless, engineers should be careful about warranting that the project will comply with climate adaptation guidelines. In most instances, compliance with such guidelines will be a function of the owner’s willingness to pay for increased studies and investigations (and likely increased project costs), as well as the Contractor’s implementation of the design – none of which the engineer has control over.
Engineers should also be careful about agreeing to obligations that they cannot fulfill without cutting-edge technology. New technologies that purport to provide great benefits can carry more risk as their long-term performance may not be well understood. When an engineer is required to employ a novel strategy to address an issue because there is no proven solution, the engineer’s contract should explicitly acknowledge that the solution is untried and the engineer cannot guarantee the outcome.
Communication with the Owner
Implicit in the standard of care is the concept that engineers do not warrant that their services will be either perfect or defect free; they only warrant that the services will comply with the standard of care. The standard of care requires compliance with applicable codes and standards. However, current codes and standards incorporate historical weather data to determine how to design for today’s conditions; they may not accurately address projected future storms, sea level rise, or heat waves. While engineers may eventually get assistance in the form of updated code requirements that explicitly address climate change, it may be incumbent upon engineers to be proactive about considering how to incorporate climate resilience into their designs.
Depending on the project, the engineer and owner may need to discuss the due diligence that is required to determine the appropriate design standards for climate resilience. Appropriate due diligence might include conducting research on publicly available weather data and projections, as well as climate impact maps and models, to determine if the building should be designed for known or highly likely, future climate-related risks.
The engineer might need to consult with appropriate professionals to determine the accuracy of climate data, including flood or storm surge maps, and regional climate vulnerability studies. While engineers are increasingly engaging climate experts in the early stages of the design process, it should be emphasized that the engineer is responsible for the work of its consultants. It may be advisable for the Owner to take responsibility for these investigations and determinations.
Part three of this Series will look at contractual provisions that can help protect an engineer from potential claims that their failure to adapt their designs for climate change is negligence.■