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Deanna Moran
Cities all over the country, including Boston, are grappling with the realities of climate change and the threats of sea level rise and extreme weather. These threats are, in turn, producing another kind of risk – legal risk. In the face of mounting climate impacts, both private and public decision makers could be held liable if they fail to address the foreseeable consequences of climate change.
A recent report by the Conservation Law Foundation, in collaboration with the Boston Green Ribbon Commission, assesses legal responsibilities for government officials and design professionals, including architects and engineers, for failing to act reasonably in the face of ascertainable climate risk. While some leading edge developers are changing their practices, assessment of climate risk is still mostly absent in prevailing development practices. Buildings and other physical assets are being designed and built based on climate patterns of the past rather than those we see now or anticipate imminently.
The industry “standard of care” that determines professional legal liability for risks like climate change is based on a number of factors, including contract language, the knowledge the professional has about climate change, the foreseeability of the harm, prevailing industry practices and applicable regulations. So, while many codes and regulations lack explicit standards for climate risk, including the Massachusetts state building code, compliance with these codes alone is not a shield for liability. All of these factors will need to be taken into account.
Failing to Prepare
Courts recognize “foreseeability” as a core component of negligence and other tort claims. For example, an Illinois court held an engineer liable for negligently designing a cement pylon that collapsed due to high winds onto a customer as she entered a shopping mall, despite the fact that such high wind speeds had never been recorded at the site before. The court determined that the engineer could have predicted the high winds with existing technology and therefore they were foreseeable under the law.
Farmers Insurance Co. filed a class action lawsuit in 2014 against a government entity in Greater Chicago after massive flooding the year prior resulted in millions of dollars in property damage for its policyholders. Farmers claimed that that flooding was foreseeable because Chicago’s 2008 Climate Action Plan identified increased rain as a climate impact for the area and noted that it would have an adverse impact on city infrastructure. Although the case was voluntarily dismissed, it raises questions about legal liability for failing to prepare for foreseeable climate change impacts.
Action on climate resilience in Boston is helping to elucidate the standard of care. The Climate Ready Boston initiative has greatly increased professional knowledge of climate risks, and has increased the “foreseeability” of those risks. Much of the flood data produced through the Climate Ready Boston initiative was validated during the recent storm on Jan 4. The record high tides and high winds resulted in massive flooding that residents of towns up and down the Massachusetts coast had never experienced. For those familiar with the climate research and data for the city of Boston, the flooding was not unexpected; rather it was now foreseeable.
In addition, industry practices are evolving rapidly. A recent Boston Globe article highlighted the innovative ways that large developers are voluntarily changing development practices to protect their assets. While industry custom is just one consideration in determining the standard of care, the increased prevalence of these practices will certainly have an impact on how the standard of care is determined by courts.
Planning at All Levels
While changing more slowly, regulatory requirements are also likely to change significantly in the face of climate risks. The Boston Planning and Development Agency (BPDA) has implemented a new resiliency checklist requirement under Article 80 development review procedures, and along with it, published a detailed 40-inch flood risk map that is searchable at the parcel level. This has the potential to significantly increase the rate of future flood risk disclosure in real estate transactions. The BPDA is additionally exploring the development of a flood protection zoning overlay district based on the future flood map.
The one significant part of our regulatory structure that has not yet incorporated future climate risks is the standards for design and construction at the state or local level.
It behooves both the private and public sectors to get out ahead of the evolving standard of care for climate-related legal liability. There are many ways we can do this, including building it into our contracts and legal agreements, continuing to publish forward-looking climate science data, updating our building codes and development regulations, and spreading industry best practices.
Liability is already being used as a basis to attempt to compel climate mitigation (the reduction of emissions), with an increasing number of cases emerging across the country against oil, gas and coal companies. But less attention has been paid to liability as a basis to compel climate adaptation. As our seas continue to rise, we could see a concomitant flood of lawsuits against those who failed to prepare for the foreseeable conditions.
Deanna Moran is the director of environmental planning at the Conservation Law Foundation.
