The construction industry has a complicated relationship with climate change. The sector is one of the largest contributors to greenhouse gas emissions worldwide.^[1] Ironically, the climate resilient infrastructure that will help communities withstand the impacts of climate change (like sea walls, permeable pavement, and efficiency-geared building retrofits) relies on the construction industry.^[2]

Caught between the urgent need to reduce emissions for climate change mitigation and the need for resilient infrastructure for climate change adaptation is the impact of climate change on the construction industry itself. Climate change impacts, like severe storms, wildfires, flooding, and extreme temperature events, threaten the safety of laborers, the quality of work, and the ability for work to be performed at all.^[3] Work that has to be repeated due to quality impacts from an extreme weather event, called rework in the construction industry,^[4] will compound the ever-growing construction industry emissions, and the inability to work may leave communities without access to desperately needed climate adaptation solutions.

With these confounding needs so intertwined, regulatory bodies can and should take further action to reduce construction industry emissions, promote and fund the installation of climate resilient infrastructure solutions, and protect the health and safety of workers.

To lower greenhouse gas emissions from the industry, regulators should consider rules  incentivizing designs that rely on materials with lower embodied carbon content, concrete additives, and electric construction equipment.^[5]

Planning and installation of climate resilient infrastructure can vary widely due to a wide variation of local needs. As different places are facing different problems when it comes to climate change, any infrastructure requirements should be reflected in city, county, and state building regulations. To promote resilient building on a national scale, policymakers should consider following the example set by the Water Infrastructure Improvement Act, signed into law in January 2019, which amended the Clean Water Act by defining Green Infrastructure and expressly allowing its inclusion in permitting plans for storm and wastewater.^[6] By allowing communities to opt for resiliency-focused options in water management plans, this act encourages implementation while giving communities the power to customize infrastructure to their needs.

Workers face novel and worsening conditions in the face of climate change effects, from bad air quality to extreme temperatures. To adequately protect construction workers from the impacts of climate change, OSHA standards should be updated. The US Department of Labor should follow the example of California’s regulators by updating OSHA provisions related to extreme weather working conditions and acceptable interventions.^[7]

In the meantime, private actors in the architecture, engineering, and construction industry can take action to move the needle on climate change action. When preparing construction contracts, parties have the power to tailor provisions beyond standard force majeure clauses to limit delay damages caused by weather events,^[8] source building materials locally, and request climate resilient building design.

Tailoring delay provisions to account for climate change events can help keep construction workers safe from potentially dangerous conditions and protect contractors from unprecedented weather events.^[9] By requiring building materials be locally sourced, developers can potentially reduce a building’s carbon footprint by negating emissions from overseas shipping^[10] and reducing the likelihood that materials will be produced with high-emission energy sources like coal. In addition to the emissions benefits that local sourcing has to offer, it may also result in quicker material procurement, which could result in faster project completion.^[11] By opting for climate resilient designs, developers may be able to decrease long-term operational costs.^[12]

If faster construction completion and lower operational costs are not enticing enough for developers to get on board, higher rent prices may do the trick. A 2022 study by Cushman & Wakefield found that LEED certified buildings (a green building metric run by the US Green Building Council) had higher rents than non-certified buildings.^[13]

Construction is not going away, and neither is climate change. Given the climate crisis we are currently experiencing, it is imperative that regulators and industry professionals work to lower emissions, improve climate resiliency, and protect workers’ health and safety.

 

^[1] See Press Release, United Nations Environment Programme, CO2 emissions from buildings and construction hit new high, leaving sector off track to decarbonize by 2050: UN (Nov. 9, 2022), https://www.unep.org/news-and-stories/press-release/co2-emissions-buildings-and-construction-hit-new-high-leaving-sector; see also Building Materials And The Climate: Constructing A New Future, UN ENVIRONMENT PROGRAMME (Sept. 12, 2023), https://www.unep.org/resources/report/building-materials-and-climate-constructing-new-future#:~:text=The%20buildings%20and%20construction%20sector,staggering%2037%25%20of%20global%20emissions.

^[2] See generally Michael Mullin, Climate-resilient Infrastructure, OECD Environment Policy Paper No. 14, 2018, at 2, https://www.oecd.org/environment/cc/policy-perspectives-climate-resilient-infrastructure.pdf; see generally The Future of Heat Pumps: Executive Summary, IEA, https://www.iea.org/reports/the-future-of-heat-pumps/executive-summary (last visited Jan. 30, 2024).

^[3] See Emily Dreyfuss, Construction Workers Toil Away in San Francisco’s Toxic Air, WIRED (Nov. 15, 2018, 7:00 AM), https://www.wired.com/story/construction-workers-toil-away-in-san-franciscos-toxic-air/; see also Gary Strong and Madison E. Calkins, How Climate Change Affects Construction Projects, LAW.COM (July 24, 2023, 10:09 AM), https://www.law.com/thelegalintelligencer/2023/07/24/how-climate-change-affects-construction-projects/?slreturn=20240029101033;see also Michael Müller, Thomas Krick and Dr. Julian Blohmke, Putting the construction sector at the core of the climate change debate, DELOITTE,  https://www2.deloitte.com/ce/en/pages/real-estate/articles/putting-the-construction-sector-at-the-core-of-the-climate-change-debate.html (last visited Jan. 30, 2024).

^[4] See generally Rework in Construction: It’s Sources and Causes, THE CONSTRUCTOR,  https://theconstructor.org/construction/const-management/prevent-rework-construction/235948/#google_vignette (last visited Jan. 30, 2024) (explaining construction rework).

^[5] See Banu Sizirici, Yohanna Fseha, Chung-Suk Cho, Ibrahim Yildiz, and Young-Ji Byen, A Review of Carbon Footprint Reduction in Construction Industry, from Design to Operation, 14(20) Materials (Basel) 6094 (Oct. 15, 2021), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8540435/; see also The Top 5 Reasons to Choose Electric Construction Equipment, DURANTE RENTALS (Mar. 27, 2019), https://duranterentals.com/the-top-5-reasons-to-choose-electric-construction-equipment/.

^[6] Water Infrastructure Improvement Act, H.R. 7279, 115th Cong. (2019); see also 33 U.S.C.A. §§ 1342, 1362 (West) (amended sections of the Clean Water Act).

^[7] Cal. Code Regs. tit. 8, § 5141.1

^[8] Strong & Calkins, supra note 3.

^[9] Matt Rossie, Construction Risks, Part 2: Climate Change, WEBCOR (Mar. 2, 2022), https://www.webcor.com/newsroom-about-webcor/construction-risks-part-2-climate-change.

^[10] Jared Rion, The Pros and Cons of Local Sourcing, GLOBAL TRADE MAGAZINE (Aug. 31, 2023), https://www.globaltrademag.com/the-pros-and-cons-of-local-sourcing/.

^[11] Id.

^[12] Tommy Linstroth, Three Reasons To Consider Green Building Certification In Your Business’ Next Buy Or Build, FORBES (Jan. 10, 2023, 9:45 AM), https://www.forbes.com/sites/forbesbusinesscouncil/2023/01/10/three-reasons-to-consider-green-building-certification-in-your-business-next-buy-or-build/?sh=1446d0ae56c4.

^[13] Jim Morrissey, U.S. Commercial Real Estate’s Environmental Performance, CUSHMAN & WAKEFIELD (Sept. 15, 2022),  https://www.cushmanwakefield.com/en/united-states/insights/valuing-commercial-real-estates-environmental-performance.