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March 2020

In A World Rocked By Climate Change, Firms Must Adjust
Getting lost in the critical communications of our international health emergency is the celebration of "Womens History Month."  Today we introduce you to a successful woman who is immersed in the A/E/C world protecting the interest and practice of architecture, engineering and construction. 
In this reprint of an article that originally appeared in the Wisconsin Law Journal, Attorney Kimberly Hurtado, CM-BIM, LEED Associate, Managing Shareholder of Hurtado Zimmerman, SC, with a practice focusing exclusively in construction, real property development and public finance of construction projects, provides an overview of a range of concerns that architects, engineers and landscape architects will want to think about and address in their contracts. 

As weather patterns continue to change around the planet, prudent architects, engineers and landscape architects are finding themselves confronting the issue of legal liability for designs that address rapid climate change impacts.
Building codes and construction regulations have long shaped the minimum requirements for the safety of our built environment. 

These requirements have been based, in part, on recorded patterns of regional geography, temperature and weather.  The apparent stability of those environmental conditions is, however, rapidly disintegrating as the effects of climate change continue to intensify.
Polar caps  are melting -- something that has happened before geologically, but never this quickly.  Rising sea levels threaten existing development on shorelines and are changing floodplain boundaries of developable land.  Weather patterns are more chaotic, causing heavy rain, snow and flooding in some places, and alternatively, record-breaking drought and wildfire in others.  Earthquakes, high winds and hurricanes also are increasing in frequency and intensity. 

It is, in short, a remarkably challenging time to design and construct buildings, roads and other structures to endure increasingly diverse weather and more frequent natural disasters.
"Climate Change: One Step Forward While Standing Still"
In establishing the structural integrity of a building, a designer today is prudent to take into consideration materials that can handle a wider range of ambient temperatures and the possibility of flooding causing foundations to be temporarily submerged or other rapid changes in the surrounding environment.  In response to concerns like these, the construction industry is exploring new methods of construction, such as prefabrication and robotic assembly of builidng materials, embodied water and fire diversion strategies, and use of new composite materials. 

For example, deformable structural material is being 3D-printed using additive manufacturing and building information modeling technology.  This material temporarily twists and bends, rather than remaining a static shape, and is intended to respond to earth movement, flooding and temperature changes without collapsing.
Given the increasing exposure of buildings to catastrophic climate change, designers and builders should consider expressly addressing their obligations related to environmental conditions in their contracts.  In its simplest form, this can be a provision limiting architectural and structural analysis to current code requirements and regional weather as of the time a design is submitted for permitting or a disclaimer of designs to withstand natural disasters.  Where known risks of flooding, high winds or fire have become prevalent, specific objective performance requirements should be spelled out in programming and resiliency benchmarks should be added to contract documents (for example, designing roof loads to exceed snow load requirements by 20% or adding building components and landscaping that divert specific quantities of water from a structure by passive and active means in the 500-year floodplain).
Designers and contractors also should be cautious of sweeping provisions that require "compliance with all applicable laws" without having an adequate understanding of federal and state environmental laws that may impact their design and construction obligations. 
It also is important to ensure insurance policies issued for construction are adequate to address losses that may arise from natural disasters during and after construction. At a minimum, broad form coverage builder's risk insurance should be obtained to protect against losses for structural collapse and water-related losses.  Depending on the reeds of the project, special form coverage should be negotiated with care taken to preclude exclusions for anticipated climate-related risks, with coverage furnished at replacement cost and for soft costs incurred due to delayed completion. 
Flood insurance for building and contents can be obtained through FEMA and the National Flood Insurance Program.  Commercial general liability insurance can be endorsed to cover toxic mold and bacterial damage, earth movement and broadened completed operations coverage.  In addition, business interruption coverage can be profoundly beneficial to mitigate disruption of operations and loss of business income due to natural disaster. 

As an additional means of addressing climate change, it is time that sustainability and analysis becomes a norm in our development of every new and renovated structure.  Designers and constructors should build resiliency into structures and the surrounding site topography to better withstand the effects of climate change.  The U.S. Green Building Council's RELi 2.0 (2018), with its measures for hazard preparedness, mitigation and adaptation, is an excellent starting place for this kind of innovative thinking to protect our built environment for generations to come. 

Attorney Kim is concerned you take health safety and welfare design and construction responsibility very seriously. We also take our mission to assist you with individual credentials and corporate credentials compliance management services very seriously.  We appreciate and understand the complexities of credentials maintenance and are here to help you navigate these challenges.  For more information visit or you may contact us at 913-608-7880. 


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