President Trump’s Climate Change Action Will Not Lower the Standard of Care Regarding Climate Change Preparedness

In his Executive Order (“EO”) relating to the Clean Power Plan, President Trump rescinded a 2013 directive, EO 13653, along with other Obama era orders.  EO 13653 directed federal facility managers to consider ongoing effects of climate change as they develop and implement plans to maintain and protect federal assets.  Does this mean that private asset managers and design professionals can ignore potential climate change in their asset protection strategies?  Absolutely not.

Climate Change in Design and Asset Protection

For example, if a design professional states a design criteria that the facility will withstand a five year storm (that is, a storm whose severity is generally expected to occur once every five years) that professional may be viewed as negligent or not meeting contract expectations if the professional does not consider how the five year storm may change over the expected life of the facility.

Separate from any issue of human cause, if evidence suggests that climate change may lead to more intense storm events, designers and asset managers must plan for this.  A five year storm event in 30 or 50 years may be more intense in some areas than the currently predicted five year event.  Some will argue that the design professional must thoroughly disclose the limitations of the design assumptions, or consider how these design conditions may change through the life of the facility, due to climate change.  Failing to do so could lead to claims of negligence or breach of contract.

Once Set, Standards Are Not Easily Lowered 

EO 13653, directing federal facility managers to consider climate change in their asset protection strategies, including design, could be viewed as indicating a standard for private asset managers, as well.

The process does not work in reverse.  Private facility managers and design professionals will get little sympathy for an argument that, with President Trump rescinding EO 13653, they no longer need to consider potential climate change in their design and asset protection strategies.  Numerous private organizations will continue to advise that climate change must be considered as part of design and asset protection.  Examples include the American Society of Civil Engineers (Policy Statement No. 360) and statements of well-known asset managers, such as BlackRock and State Street Global Advisors.  EO 13653 and these pronouncements go a long way to setting the standard of care on this issue.  President Trump’s EO will not lower that standard.

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