Climate Change, Sustainability, and Resiliency: Design Professional Roles and Risks

By David J. Hatem, PC

Climate Change, Sustainability, and ResiliencyThe need for design professionals to take climate change, sustainability, and resiliency (“CCSR”) into consideration in project design is growing. Of equal importance is the aspirational goal of educating owners to adopt CCSR objectives in project programs. These objectives need to be achieved in a process that adequately accounts for the management of design professional risks.

Roles in the Design Development Process

Design professionals, through their professional skill, acumen, and experience, provide services (including design) to their clients (typically private and public owners, and sometimes contractors and others) in making recommendations as to how to design a project that will achieve the programmatic objectives of their clients. Those recommendations typically emerge from studies that the design professional provides to its client. The scope and quality of those options and recommendations derive from the scope of services that the client engages the design professional to perform.

Ultimately, the project owner makes design decisions regarding the recommendations, including those involving CCSR issues. That said, design professionals can and should serve a critically important role in influencing the selection of design options, and in design advocacy (to their clients) for appropriate and sensible consideration of CCSR goals, that are sensitive and responsive to both long and short-term environmental impacts.

In my experience, design professionals are professionally and ethically motivated and preeminently qualified to promote “public” and external (i.e., non-project-centric) considerations and objectives (such as CCSR) to their clients. In the specific instance of CCSR, there is room for improvement in equipping design professionals to better perform that role.

Standard of Care

Relevant public law – codes, regulations, mandatory standards – must be reasonably comprehended and appropriately applied in the project-specific design development process. However, public law sets minimum standards. Compliance with public law is not determinative of a design professional’s adherence to the professional standard of care.

“Good” design typically requires far more than public law compliance. In the CCSR context, a fair question is whether more public laws will serve to compel project owners to make the “right” design decisions. Perhaps but, the analysis of that question is a bit more complicated. Public law may add unnecessary cost or time to a project, as well as risk, especially in a technical province that is evolving, such as CCSR. Public law may also stifle design innovation or compliance may not be appropriate in a particular project-specific application. Compliance with public law may depend upon the actions of a number of project participants who have no privity relationship and who are not in a position to control (or otherwise be responsible for) the decisions and actions of the others. This observation is especially true in the area of sustainable design.

Alternative Project Delivery and CCSR

Another important issue that needs to be addressed is the impact and potential positive influence of alternative project delivery (e.g., design-build) and financing (P3s) procurement (e.g., selection criteria) and contracting practices – at federal, state and local levels – in the furtherance of CCSR objectives. The articulation and evolution of selection criteria that includes CCSR considerations provides an excellent opportunity for the promotion of CCSR objectives.

Professional Liability Risk and CCSR

This topic is discussed in detail in Green and Sustainable Design: Part 1: Professional Liability Risk and Insurability for Design Professionals.

Donovan Hatem CCSR Roundtable

Donovan Hatem will be hosting a Design Professional Roundtable on CCSR: Practice Issues for Design Professionals in the near future. We look forward to seeing you there.