Hurricane Harvey had a devastating impact on the City of Houston, Harris County and the entire State of Texas. It generated record-breaking amounts of rainfall and destroyed or damaged thousands of homes and businesses. It is estimated that the unprecedented flooding damaged well over 100,000 homes in Houston and completely destroyed several thousand.
Perhaps inevitably, given such widespread destruction, those suffering losses have begun to consider whether the flooding was solely the result of the torrential rains, or if there were also other contributing causes, or responsible parties. In Salo v. The United States, filed on September 5, 2017, the Plaintiffs contend that their homes flooded not because of rainfall but because the United States Army Corps of Engineers executed controlled releases of storm water from the Addicks and Barker reservoirs. The Plaintiffs contend that they had mostly escaped flooding from the storm itself, and that it was only after the Corps of Engineers began releasing water from the reservoirs that their homes were inundated. There appears little dispute that the releases from the reservoirs were intentional and that the Corps of Engineers knew exactly what would happen as a result. Indeed, the Corps issued several warnings to homeowners to evacuate precisely because it knew that catastrophic flooding would ensue.
Such suits do not contend that the government made the “wrong” decision. They argue simply that if the government deliberately takes private property, even for a valid public safety reason, it must compensate property owners for the fair value of what was taken. The “takings clause” of the Fifth Amendment to the U.S. Constitution provides: “nor shall private property be taken for public use, without just compensation.” The Government can be expected to argue that a single instance of flooding, that may not recur, does not constitute a taking because temporary effects are not always compensable. As the U.S. Supreme Court held in Arkansas Game and Fish Commission v. United States , 133 S. Ct. 511, 184 L. Ed. 2d. 417 (2012), “temporary limitations are subject to a more complex balancing process to determine whether they are a taking. The rationale is evident: they do not absolutely dispossess the owner of his rights to use, and exclude others from, his property.” The Government thus will likely argue that the flooding did not constitute a permanent taking or an “inevitably recurring” flooding situation that would constitute such a taking.
Another problem for Plaintiffs could be the necessity of proving causation in individual cases. A suit filed as a class action could conceivably founder on the requirement of each homeowner needing to prove that her flooded house would not have flooded but for the controlled releases from the reservoirs. This does seem likely the case, on the surface, but the Government can surely be expected to argue that differences from house to house are relevant to whether a particular house flooded because of the reservoir releases alone, the rainfall, or some combination of both.
In addition to the intentional flooding cases brought under inverse condemnation theories, at least one other high profile consequence of Harvey is spawning litigation. The Arkema chemical plant in Crosby, Texas experienced a loss of power due to the hurricane. Certain chemicals stored at the plant required refrigeration so as not to ignite. Lacking the necessary refrigeration, explosions and fires ensued, which are alleged to have caused poisonous fumes to spread over a several mile area surrounding the plant. First responders have already filed suit claiming they were damaged through exposure to such chemical fumes. Harris County has announced its intention to file suit as well, claiming that Arkema violated the Texas Clean Air Act and lacked proper emergency preparedness and environmental practices which would have prevented or mitigated the harm from such an event. Harris County will seek to recover its costs incurred in responding to the emergency.