The Ramifications of Resilient Design

While climate change has persisted as a political point of contention, the architectural community has joined the scientific community in widely acknowledging and promoting the need to aggressively address our changing environment. The American Institute of Architects (“AIA”) has stated in clear terms that “architects have the unique ability to address our rapidly changing climate through design.”¹ The 2016 revision of the AIA Code of Ethics and Professional Conduct went on to seemingly codify that architects are called to implement environmental consciousness into their designs by specifically adopting Rule 6.501, which mandates that its members “consider with their clients the environmental effects of their project decisions.”²

While most construction industry players are familiar with sustainable design principles and goals, in recent years we have seen a partial paradigm shift in how design professionals address climate change through their designs. Sustainability’s counterpart – climate adaptation through resilient design – has become an integral part of climate change considerations. While the two concepts are often discussed in tandem, they are not synonymous. The goal of sustainable design is to reduce the environmental impacts of construction and the built environment, while resilient design addresses the demands and risks of the “new normal” associated with the stresses of an increasingly extreme climate.

Resilient Design – Generally

The Resilient Design Institute, an organization offering practical guidance for making buildings, communities, and systems more resilient in the face of global climate change, defines resilience as “the capacity to adapt to changing conditions and to maintain or regain functionality and vitality in the face of stress of disturbance. It is the capacity to bounce back after a disturbance or interruption.” In turn, resilient design is “the intentional design of buildings, landscapes, communities, and regions in response to these vulnerabilities.”³ To design with resiliency entails consideration of the typical use and normal stresses buildings endure, but also foreseeable worst-case disaster scenarios that challenge buildings’ functional integrity. Locality plays a critical role in guiding this risk profile; resiliency is critically locale-specific. Coastal communities face rising sea levels; the southeast is being subjected to more frequent and more powerful hurricanes; California is learning to live with recurring exposure to massive wildfires. Each risk warrants a different response.

The architectural community has not shied away from its leading role in making buildings (and communities) more resilient, and the aspirations articulated by the AIA are virtuous. But the widespread promotion of resilient design also raises significant legal questions as to architects’ standard of care and potential liability. Does current understanding of the impacts of climate change demand that architects design more resilient buildings? Are they legally obligated to do so? Does an architect act negligently if he or she does not consider resiliency principles or employ resilient designs? How is the sufficiency (or insufficiency) of actions taken to meet any such obligation to be measured?

Negligence Claims and the Architect’s Standard of Care

Negligence claims against architects (and other design professionals) may arise when they fail to perform their services within the applicable standard of care. The prevailing standard of care has remained unchanged for generations: architects are required only to use of the same degree of knowledge, skill, and ability that other architects exercise under similar circumstances. The AIA’s standard form contract language mirrors this common law definition:

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.⁴

Clearly, the standard of care does not require perfection. Nor is the standard of care intended to itself create a warranty, guarantee, or strict liability.

But even failing to practice in accordance with the standard of care does not automatically result in liability for an architect. To be held liable for professional negligence, four elements must be proven:

1. 1. there must be a duty owed by the architect to the injured party;
  2. the architect must breach that duty (i.e., there must be a failure meet the requisite standard of care);
  3. the injured party must have actual damages (e.g., personal injury or property damage); and
  4. there must be a causal connection between the breach and the damages incurred. The harm incurred must be a direct and proximate result of the breach, and the harm must be a reasonably foreseeable result of the breach.

Does the Standard of Care Require Architects to Consider Resilient Design Principles?

Courts have not yet answered this question. But because an architect’s standard of care is measured by the skill, care, and practices provided by comparably situated architects, prevailing industry practice is a key component of determining the actions and services an architect must undertake to meet that standard. As such, widespread adoption and implementation of resilient design principles within the practice of architecture should, over time, strengthen the argument that architects must at least consider resiliency in their designs. The norm becomes the requirement.

The seminal 1888 case of Hubert v. Aiken⁵ provides a humble yet enduringly instructive example. In Hubert, the architect of a “first-class apartment home” was found liable when the chimney flue for the boiler system exhaust was determined to be inadequately sized. At the time of Hubert, such homes were “of recent introduction,” but steam-heating had by then become “common, if not a necessity, in all apartment houses of large size.” In explaining the decision, the court eloquently articulated:

when in the progress of civilization, new conveniences are introduced into our homes, and become, not curious novelties, but the customary means of securing the comfort of the unpretentious citizen, why should not the architect be expected to possess the technical learning respecting them that is exacted of him with respect to other and older branches of his professional studies?

Is resilient design a “curious novelty” or a has it reached status as a “customary means” to provide for the safety, security, and comfort of “unpretentious citizens”?

The data, strategies, and solutions that guide resilient design are abundant. The AIA’s website, for example, is full of guidance and resources for resilient design. Recent catastrophic events – natural and manmade – instruct us as to the risks we face. An entire field of climate consulting has developed to provide professional services to forecast and anticipate future developments. In addition to demanding its members consider with their clients the environmental impacts of project decisions, the AIA Code of Ethics and Professional Responsibility also states that members “should incorporate adaptation strategies with their clients to anticipate extreme weather events and minimize adverse effects on the environment, economy and public health.”

At minimum, it would seem that the prevailing practice, and in turn, the required standard of care, is to consider resiliency in designs, even if doing so is largely aspirational and voluntary based on existing building codes and regulations.

Does Liability Necessarily Follow?

Courts have not yet addressed liability with respect to climate adaptation. To hold architects liable for failing to design with resilience in mind, courts must find a causal connection between the harm incurred and the failure to meet the standard of care. The harms must be foreseeable. There also remain open questions as to how to measure the requisite attention to resilience, which depends on the nature and locality of the project.

Arguably, because there is broad consensus regarding the risks posed by climate change, the associated harms that can be expected in the future, are foreseeable. Courts have considered – in a variety of applications – prevailing scientific understandings about the nature and extent of known risks. Parties in positions to mitigate those risks are often found to have a duty of care to do so. Because architects should know of these risks, they should account for them.

While not addressing an architects’ standard of care, the U.S. Supreme Court’s decision (and, particularly its minority dissent) in Massachusetts v. Environmental Protection Agency,⁶ may be instructive and may offer clues as to how courts will assess these issues.

Massachusetts – joined by a slew of states, cities, and organizations – argued that it was losing land to rising sea levels as a result of climate change. Massachusetts further argued that the EPA’s rationale for refusing to regulate greenhouse gases (which contribute to climate change) was inadequate. The Court’s majority, in a contentious 5-4 decision, agreed and required the EPA to provide a reasonable basis in order to avoid regulation. Justice Roberts, in dissent, argued that the alleged harm (Massachusetts’s loss of land) was too speculative and without adequate scientific support. Roberts argued that there was no traceable causal connection between the EPA’s refusal to enforce emission standards and the purported harms.

Drawing parallels, it is certainly plausible that courts would find specific harms and purported causal connections to be too speculative to impose liability against architects for failing to implement resilient designs.

Clear Communications Between Architects and Their Clients is Critical

Assessing and implementing resilient designs costs both time and money. Addressing all long-term climate change scenarios by over-engineering to today’s standards is, in many cases not a practical or viable option. But this does not mean that architects – or their clients – should simply be satisfied with meeting baseline minimums provided in local building codes or otherwise ignore ways to make their projects more resilient.

Incremental steps toward resiliency and honest, transparent considerations of risk may be enough to meet the standard of care for architects, and to appropriately educate and satisfy their clients. Like with sustainability requirements, resiliency requirements should be clearly articulated in consultations, project documents, and in the parties’ contract.

To clearly set expectations (and obligations), parties should avoid vague, ambiguous, or overly broad language in project documents and their contract. For example, rather than stating the project “will incorporate resilient design strategies” or “shall be designed to be resilient,” parties should list the specific strategies (and methods) that will be undertaken and cite to specific standards. Documents should specify specific design elements and the standards they must meet.

Architects and clients wishing to build resiliently, should consider third-party certification criteria such as U.S. Green Building Council’s RELi 2.0 Rating Guidelines for Resilient Design and Construction (the resilient design equivalent to USGBC’s LEED certification program), which provide a transparent and comprehensive set of criteria.

Conclusion

Designing resiliently is an admirable ambition for architects and other design professionals and one that architects seem to be working to achieve. However, as this ambition evolves into more of an obligation, it will be interesting to see if the duties or standard of care for architects also evolve or if any additional legal ramifications follow suit.

[1] https://www.aia.org/articles/6097684-how-to-integrate-resilience-into-your-prac:56?editing=true

[2] http://content.aia.org/sites/default/files/2020-12/2020_Code_of_Ethics.pdf

[3] https://www.resilientdesign.org/defining-resilient-design/

[4] AIA B101-2017, § 2.2.

[5] 2 N.Y.S 711 (Ct. Common Pleas N.Y).

[6] 549 U.S. 497 (2007).

Article Content is Not Legal Advice. This article is for informational purposes only. The content in this article is not legal advice and should not be construed nor relied upon as such. This is not a substitute for personal legal advice.

The Ramifications of Resilient Design

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