Redefining the “Risks” of Sustainable Buildings

Traditionally, many lawyers are trained to identify issues—but not necessarily look for solutions. I practiced construction and insurance litigation for years before I figured this out. Identifying issues often means looking for risks and advising clients to avoid those risks. As my career took me deeper into sustainable design and education, I realized that the most successful and respected lawyers looked not just for problems but also for innovative solutions.

Redefining Risk

For many reasons, risk is actually a difficult concept to define. Generally speaking, risk is the likelihood that something “bad” happens. What constitutes “bad” depends on the project, project goals, and overall context. Bad could mean a lawsuit, negative press, increased costs, delays, unmet expectations, or something that just doesn’t work the way everyone thought it would.

Risk dovetails with innovation because innovation almost always involves some risk. This is because innovation involves trying a new idea or method—something that lacks clear precedent. When we innovate, we do not necessarily know that the outcome will be as expected, and that can make innovation seem risky.

For example, around 2008 the term “LEEDigation” was coined, and to some it represented the fear or “risk” that there would be a significant amount of litigation surrounding “green” buildings, which were relatively new. Given the number of unknowns associated with this project type, and the third-party certification systems associated with it, there was some perceived risk. This fear never really materialized; there were some lawsuits related to projects that pursued sustainable objectives, but, based on our review of the cases, many of these lawsuits were traditional design and construction disputes. The context and project goals were just different in that they were more “sustainable.”

Risk in the context of climate change

Missing from the traditional risk analysis is the fact that climate change is one of the greatest risks to human health and wellness. Among other goals, sustainable buildings attempt to mitigate climate change by reducing the built environment’s significant contributions to carbon emissions. While there is arguably some “risk” in innovating with respect to sustainable building, when considered in the context of climate change and its undeniable impacts on human and environmental health, we need to reevaluate our definition of risk.  

Adding to this context is the significant body of research that clearly demonstrates we need to make big changes at scale: our historically incremental changes will not make a meaningful difference. And when we fail to innovate at the scale needed to support meaningful change, we create and perpetuate significant risks to our health and wellness, and to that of future generations.

There are many examples of “innovative risks worth taking.” Below are two examples where the cost of inaction is arguably higher than the risk of innovation. This is especially true in the current context of a rapidly changing climate and a global pandemic.

“Healthier” indoor spaces

At first glance, “traditional” buildings, and their significant volume of historical data, may appear less risky than novel building systems that employ innovative strategies and systems that support human health and wellness.

However, the overall context is changing, and that alters the risk analysis. “Healthy” buildings are more common, and the general public has a far greater understanding of the built environment’s impacts on human health and wellness. Both commercial and multifamily residential tenants are more educated and more likely than ever to ask meaningful questions about their spaces. Proactively planning for and implementing improvements that support occupant health and wellness is one way for building owners to create market differentiation.  It is also a strategy to minimize the risk of falling behind on future regulation and to mitigate potential allegations of negative health impacts from traditional building design.

As practitioners, we know that we can make changes to building design and operations that significantly improve human health and wellness. Given this knowledge, the risk of failing to create healthier spaces arguably outweighs any potential risk of making a well-informed attempt to utilize or implement an innovative product or process, even if it lacks clear precedent.

Wood products as structural materials

Given the explosion of interest in low-embodied-carbon building materials and advocacy from industry groups and manufacturers, it is likely we will see continued market adoption and revised regulation that allows for broader use (or different application) of innovative wood products like cross-laminated timber (CLT).

However, in a big-picture and historical sense, the use of wood products is not really that novel. Wooden structures were common until (among other factors) the fear that stemmed from the Great Fires resulted in widespread use of alternative, and ultimately high-embodied-carbon building materials.

In today’s context, building with innovative wood products like CLT requires updated research and systems to support the high-rises that modern cities require. And yet, wood itself is a material that we have utilized for hundreds of years.

With appropriate testing and research, the risks associated with new wood products are likely outweighed by the risks to environmental and human health that are associated with the continued use of high-carbon building materials. While building owners are arguably being pressured to shoulder some of the risk of innovation to help society solve the climate problem, it is also important to consider the fact that climate change puts physical structures at an increasing risk of damage from, among other things, extreme weather events. Working to mitigate the built environment’s contributions to climate change emissions benefits everyone while also reducing risk to individual assets. 

Appropriate context and strategies for application

In defining risk, it is critical to put it in the appropriate context. Otherwise we risk stalling much-needed innovation.

Once risk is in the appropriate context, it can be more appropriately analyzed and managed. In our work, we have found that it is often helpful to look back before we look forward. As with the cross-laminated timber example, some technologies that appear entirely new are at their root very familair. Keep in mind that while construction, like law, can be an industry that is slow to change, the building design and construction industries have historically done many new things. Perhaps not at the pace we always want—but new building types, materials, tools, and applications have been introduced, and the industry has adapted.  

For example, consider that when it was first introduced into the market, LEED was a novel concept. Now, LEED and other third-party certification systems are widely recognized, design and construction firms are very familiar with working on LEED projects, and in some areas, certification is considered the market standard. Change is possible, and in our experience, many trends, as highlighted in the above examples, are cyclical. Looking back to historical lessons learned often sheds light on how to identify and solve problems in the present, once they are placed in the appropriate context.