The Climate Innovation Imperative: Risk, Resilience, and the Standard of Care

At the AIA Colorado Practice + Design Conference, Yvonne Castillo Esq. of Victor Insurance Managers delivered an insightful session titled “The Climate Innovation Imperative: Risk, Resilience, and the Standard of Care.” Castillo, representing Victor Insurance, the largest underwriting manager for design firms globally, highlighted the firm’s partnership with CNA Insurance and its pioneering role in professional liability policies for architects since the 1950s. As head of the Risk Advisory Department, she emphasized the growing importance of understanding and mitigating liability risks in the face of climate-driven hazards.

The session began with a review of foundational climate science, including NOAA’s atmospheric carbon dioxide data and NASA’s temperature data, which reveal alarming trends in emissions and global warming. Castillo connected these findings to NOAA’s tracking of billion-dollar disaster events, illustrating the rising frequency and costs of climate-related disasters. She underscored the need for architects to consider future climate conditions—extreme heat, flooding, drought, and storm surges—when designing assets intended to last decades.

Studies like the AIA Resiliency in the Built Environment and HGA/University of Minnesota Climate Adaptation studies were discussed, revealing gaps in stakeholder understanding and the industry’s slow adoption of climate projection data. Castillo also referenced ACEC’s guidance clarifying that building codes, often based on outdated weather data, are insufficient for addressing future climate risks.

Legal cases provided critical insights into how courts are addressing climate-related negligence claims. The Barnett vs City of Yonkers case highlighted timing in negligence analysis, while the Conservation Law Foundation vs ExxonMobil case emphasized the expectation to consider foreseeable severe weather. The Battery Park City Neighborhood Association vs Battery Park City Authority case and Argos Properties vs City Council of Virginia Beach case demonstrated judicial support for long-term planning based on climate data. Conversely, the Save the Colorado vs US Army Corps of Engineers case showcased the risks of ignoring future climate conditions, leading to halted construction and legal challenges.

Castillo recommended tools like the AIA Trust Climate Screening Service, LEED V5 climate risk assessments, and portals such as Argonne National Laboratory’s ClimRR, NOAA’s Climate Explorer, USDA Wildfire Risk Portal, and NOAA Sea Level Rise Viewer. She stressed the importance of informed consent provisions in contracts, documenting client decisions to decline resiliency measures, and defining scope and limitations to protect against liability. The session also addressed challenges to the Act of God defense and used a school of fish metaphor to explain the evolving standard of care. Castillo concluded with practical strategies for integrating climate data into design practices while safeguarding professional responsibilities.

Courts Are Requiring Climate Data Consideration

Recent court cases demonstrate that judges expect professionals to consider available climate projection data in their analysis. The Colorado Gross Reservoir case specifically rejected the argument that climate data is ‘too uncertain’ to use, establishing that professionals should incorporate climate science even without perfect certainty.

The court said, I don’t expect that you have a crystal ball and that you can predict with exact certainty what those future projections are going to look like. But just like you incorporate any technical scientific data in your analysis as engineers, why would you leave out climate data, climate scientific data in that analysis, especially when you’re conducting a feasibility analysis to determine what the best solution to meet future demand is.

Accessible Tools Make Climate Analysis Feasible

Multiple free and affordable tools now exist for climate risk assessment, including NOAA portals, Argonne National Laboratory data, and the AIA Trust’s Climate Screening Service. These tools make climate analysis accessible to firms of all sizes without requiring climate science expertise.

Argonne National Laboratory this is a really, really good free online portal for you to find high resolution hourly climate projection data. It’s free. If you go through the Climater portal, this data is much more finer scale. It’s going to cover hazards like extreme heat, which is going to be important for all of you working here in Colorado. Those impacts on H vac systems, precipitation and a number of other hazards. So you can get some really good high resolution data if you go to that portal. And again, this is not a complicated climate modeling or climate scientific task. Me, I can do it and I’m a lawyer.

‘Client Didn’t Ask’ Is Not a Strong Defense

Relying on the defense that ‘the client never asked for climate analysis’ is legally weak. Courts expect licensed professionals to know more about built environment risks and to proactively address foreseeable hazards, regardless of whether clients specifically request this analysis.

The biggest barrier in using future forward climate data is that clients aren’t asking for it. Okay, so I want to focus on that last bullet point because again, from a professional liability standpoint, that really stood out to me was a big red flag. Because in a negligence case, courts, if you find yourself in a negligence, hopefully none of you have been, but if you find yourself in a litigation where a negligence claim has been lodged against you, the courts and the jurors are likely not going to align with that kind of defense.

Industry Practice is Creating New Standards

The professional standard of care is being shaped by emerging industry practices. As more firms adopt climate-forward approaches, access climate data, and implement resilience measures, these practices become part of what courts consider ‘reasonable’ professional behavior.

So all of these undercurrents that I’m sharing with you today, this essentially represents that our knowledge is changing, we are doing things differently. We don’t have a neat, clean boundary around what is generally accepted practice. And the challenge for you is that as our knowledge of these risks grow, so does the standard of care they run together.

Contracts Must Address Climate Risk Conversations

Architects should include specific contract provisions for climate risk screening, informed consent when clients decline resilience measures, and clear scope limitations. These contractual protections help manage professional liability exposure while ensuring clients understand the risks they’re accepting.

The first thing I would recommend is perhaps you have some sort of climate risk screening clause in your contract, just so that you have the option to say to your client, I’m going to share with you some climate modeling data. It’s credible, this is why it’s credible. And this is a conversation we’re going to have about it. But it doesn’t necessarily mean that this information is going to be incorporated into our professional services agreement, because that’s up to you whether you want to invest in additional resiliency measures.

Documentation is Critical for Risk Management

Architects must document climate risk conversations with clients, including what data was shared, what resilience measures were discussed, and client decisions to decline additional measures. This documentation shifts liability away from the architect when clients choose not to invest in resilience.

You want to document that you had the conversation that you shared, for example, the AIA’s climate screening model, or you looked at NOAA data or the Argonne data. You had that conversation on this date. This was the data that you shared. You might want to even append it to your contract and to say, here’s what we talked about. If you don’t want to invest in these additional resiliency measures that go beyond code, because code does not necessarily address these challenges, that’s fine. But we’re going to document it, we’re going to put it in writing.

Standard of Care is Evolving with Climate Science

The professional standard of care is not static but evolves as knowledge grows. As climate science becomes more accessible and widely understood, courts expect architects to incorporate this knowledge into their practice, similar to how the asbestos case established that timing of knowledge affects liability.

Climate risks. So timing is everything in a negligence analysis on what is reasonable when it comes to the question of what courts think that you could have or should have done to address certain risks. And because timing is so important, this is why I wanted to talk about this with you all relating to climate change and our knowledge of climate risks. Today, if you Google climate change or adaptation or resiliency, you’re going to get more. I can guarantee you more than a billion results are going to pop up.

Climate Knowledge Creates Legal Expectations

The abundance of available climate data fundamentally changes professional liability expectations. Unlike past decades when climate risks were unknown, architects today have access to extensive climate projection data, making the traditional ‘Act of God’ defense increasingly weak in litigation.

Today we have access to a lot of climate forward data. It’s free, it’s online. You can go right now. I can go today. I can look at my location, my house, I can pull up what my house location is going to look like in the year 2050, in the year of 2100, based on credible scientific data and multiple models from scientific communities around the world. So I have that information to me free and I’m not even a design professional. So the fact that this stuff exists and it’s out there and because of this knowledge that you know that we have this wealth of resources to help you understand or at least be able to see at a high level what your projects look like in the future to me, this is going to call into question that act of God defense.

Building Codes Don’t Address Future Climate Conditions

Most building codes are based on historical weather data, sometimes from the 1980s, and don’t account for future climate conditions. Architects understand this limitation, but clients and contractors often mistakenly believe code compliance ensures resilience, creating a dangerous communication gap.

The vast majority of the architects who responded to the survey to one particular question believe that code does not make a building resilient enough for its location and it will not enable buildings to withstand all likely hazards in their locations. Very important point. So most architects recognize that building codes are not addressing resiliency. That’s a very good thing. The problem with that is the other two groups, the clients and the contractors who responded to the survey said the exact opposite.

Government Projects Set Higher Expectations

Courts give wide discretion to government entities using public funds for long-term climate planning, viewing it as fiscally responsible. The Battery Park City case established that prioritizing long-term resilience over short-term disruption serves the public interest and efficient use of taxpayer dollars.

The court stated, I lifted one quote here, that the public interest here is incontestable. One of the fundamental purposes of the project is to ensure that it can be enjoyed by generations to come and that the authority properly exercised discretion to prioritize long term planning and public safety, even if it means substantial alterations to the park.