Contract documents

April 20, 2022

April 22, 1970, marked the first Earth Day. Until that point, American society was generally ignorant of environmental concerns such as air pollution, harm to species, ecosystems and human health caused by industrialization. Widely credited with sounding the alarm, Rachel Carson’s seminal book, the 1962 Silent Spring, catalogued the deep environmental harms caused by the proliferation of chemicals in our waterways from industrialized agriculture.

Architects by no means ignored that clarion call, forming the first AIA Energy Committee in 1973 and subsequently the Committee on the Environment (COTE) in 1990. In 2020, COTE celebrated its 30th year, publishing a history of its work that demonstrates the leadership they provided on behalf of the profession in reducing the negative impact of buildings on the natural environment and human health. Today, COTE has drawn a line in the sand — that good design is sustainable design.

So, it is easy to imagine the frustration among steadfast sustainability leaders that our industry faces a reckoning this Earth Day, 2022 – that despite the best efforts of some, through advocacy, in practice and with a profound sense of purpose, we are not meeting the benchmarks necessary to avoid the worst effects of climate change.

Environmental Impact of the Building Sector

Based on data from the U.S. Energy Information Administration, we know and have known for many years that buildings generate nearly 40% of annual global carbon dioxide emissions, and of that total, that building operations are responsible for 28%.  Just on their own, building materials and construction (in their production, known as embodied carbon) represent additional 11% of emissions. (See www.architecture2030.org and www.eia.gov).

The most recent report by the Intergovernmental Panel on Climate Change (IPCC) warned (as reported here by Fast Company) that “policies that favor wasteful new construction, and do little to encourage environmentally minded retrofits, have hindered the building industry’s ability to curb its footprint.” Despite a 1% dip in energy consumption of commercial buildings during 2020 due to the global pandemic, demand shifted to the residential market, where houses incidentally are following a disconcerting “bigger is better” trend, and energy consumption continues to rise according to the UN 2021 Global Status Report for Buildings and Construction.

It may no longer reasonable (in the legal sense) to ignore climate change.

The effects of climate change on the Earth and human populations are obvious now except to the willfully ignorant – but professionally and reputationally, design professionals, construction companies and corporations face particular risks associated with climate change that may ironically be drivers of positive change.

The AIA Trust is currently studying climate change’s impact on professional liability by surveying AIA members and listening to insurance carriers that carefully monitor changes in state laws and the codes and standards and practice trends that change the professional standard of care over time.  Will it one day soon be considered unreasonable from a professional liability perspective not to take climate change into consideration for planning and design, given that major weather events, shocks and stresses are no longer unforeseeable? This is a key question and developing issue for design professionals.

For corporations, customer demands and willingness to pay more for sustainable products and services are driving the expectation that they will be delivered with environmental and social impacts in mind. Generation Z (those born between 1997 and 2012) is growing up and entering adulthood with a keen awareness of corporate and personal environmental and social impacts. They demand and expect accountability and will determine the shape of the future economy.  For the largest corporations, if they are carefully watching those currently young and future customers, this means that one system-wide change can mean real impacts on both their sales, and environmental footprint.

As reported recently by Forbes In a study of executives perceptions of the impact of climate change, the Deloitte Global’s 2021 Climate Check report showed that 80% of executives are concerned. How will that concern translate into action?  Looking ahead, the Deloitte report lays out five main areas of risk for corporations: operational impact, scarcity and cost of resources, regulatory and policy uncertainty, increased cost or unavailability of insurance, and reputational damage.

There is hope in every project.

This all may sound dire, but beyond doing the right thing, these vectors represent increased pressure on owners and corporations to change and perhaps more importantly, the hope that once the corporate world mainstreams the mitigation of risks associated with climate change, pro-environment actions of early adopters could become mandated by both customers and regulatory oversight — at once serving a higher purpose, and future generations to come.

In 2020, the AIA announced an ambitious renewed focus on environmental stewardship, and the same year, updated the AIA Sustainable Project documents. In particular C204-2020 Standard Form of Consultant’s Services: Sustainable Project Services, providing teams and owners a legal roadmap to integrate sustainability into design and construction projects.

No matter how troubling the news headlines or seemingly overwhelming the size of the challenges we face ahead as an industry, every project, every step taken toward changing the business-as-usual mindset, is a step in the right direction. On the design side, we have the strategies, such as passive heating and cooling, denser housing, and an emphasis on retrofitting building stock. We just need to implement them.  Therefore, in assessing the risks, look at the opportunities as well, to build a more hopeful future — not just this Earth Day — but every day.

Jessyca Henderson is an attorney and architect based in Maryland, providing legal services and consulting to design professionals, corporations and government related to sustainable design, building science, and environment. www.jlhlawoffice.com

AIA Contract Documents has provided this article for general informational purposes only. The information provided is not legal opinion or legal advice and does not create an attorney-client relationship of any kind. This article is also not intended to provide guidance as to how project parties should interpret their specific contracts or resolve contract disputes, as those decisions will need to be made in consultation with legal counsel, insurance counsel, and other professionals, and based upon a multitude of factors.