By Alexandra Noll*
On August 25, 2017, Hurricane Harvey struck the Texas Gulf Coast as a Category 4 hurricane. Harvey was the first hurricane above a Category 3 to hit the United States since 2005.It was downgraded to a tropical storm by August 26, 2017.But Harvey stalled over the Gulf Coast and Houston, dumping 27 trillion gallons of water on the region.Parts of Houston itself got over 50 inches of rainfall in the span of a week.15,528 houses were destroyed, and 273,276 homes were damaged during the storm.This blog will explore the aftermath of Hurricane Harvey from a legal perspective. Specifically, this blog will examine the litigation filed and the intriguing legal arguments behind it.
The majority of flooding caused by Hurricane Harvey only occurred because the Army Corps of Engineers engaged in “controlled releases” of the Barker and Addicks reservoirs, which essentially took place after the storm had mostly passed.[vii]This process “propelled water into thousands of homes and businesses that wouldn’t have otherwise flooded and whose owners thought they had escaped from the worst rainstorm in modern U.S. history largely unscathed.”[viii]A class action lawsuit has been filed on behalf of homeowners in these areas, alleging that the Army Corps of Engineers should have told homeowners that they were purchasing houses that were technically considered part of the floodplain.[ix]The lawsuit also alleges “the government seized private land without compensating the owners – a legal concept known as ‘inverse condemnation.’”[x]What makes this lawsuit unique is that it claims that the Corps “should have warned property owners of their flood risk – and compensated them by purchasing easements – because they were built on land the agency considers part of the reservoirs.”[xi]
The United States Court of Federal Claims split up the lawsuit into “two distinct groups of property owners – upstream and downstream.”[xii]Property belonging to members of both groups flooded for the same reason, but the justifications for the lawsuits are different.[xiii]Upstream plaintiffs have sued “because the Army Corps elected not to release enough water, causing it to pool behind the earthen dams and eventually flow around the ends of the reservoirs” into neighborhoods.[xiv]Downstream plaintiffs, on the other hand, allege that the Army Corps knew that “releasing water from the dam gates” would “cause Buffalo Bayou to steadily rise and flood their neighborhoods.”[xv]
Christina Micu, one of the lead plaintiffs, lived in a home in Cinco Ranch: “one of the neighborhoods most heavily damaged when the Army Corps allowed the land area submerged behind the dams, called the ‘flood pool,’ to reach record size.”[xvi]Ms. Micu “didn’t have flood insurance and was advised she didn’t need it because her home was not in the 100-year flood plain.”[xvii]Many Houstonians were totally unprepared for the onslaught of floodwaters because Harvey was hailed by many as a 500-year flood.[xviii]This merely means that “experts estimate that in any given year, there’s a 1-in-500 (0.2 percent) chance a flood this bad” will happen.[xix]Similarly, a 100-year flood refers to floods in areas that had “about a 1 percent chance of flooding in any given year.”[xx]
However, planning for future floods can be a difficult process. FEMA is in charge of mapping 100-year and 500-year “‘floodplains’ – the places that would get flooded” in case of a 100-[year] or 500-year flood.[xxi]This process is affected by “current climate change trends,” so FEMA has to continuously update its assessments.[xxii]After Harvey, it appeared that these floodplain maps were out of date.[xxiii]For example, Memorial City, in West Houston, is theoretically outside the estimated 500-year floodplain “but flooded three times in the past decade: in 2009, 2015, and 2016.”[xxiv]
These lawsuits against the Army Corps of Engineers all stem out of the Takings Clause of the Fifth Amendment, seeking “several billion dollars” from the government as “just compensation.”[xxv]In Arkansas Game & Fish Commission v. United States, the Supreme Court held that there is no temporary flooding exception to the Takings Clause, as a temporary interference with property can be a taking for purposes of the Fifth Amendment.[xxvi]
In December 2017, Chief Judge Susan Brader of the U.S. Court of Federal Claims refused to grant the Justice Department’s proposed year-long delay of the lawsuits against the Army Corps of Engineers.[xxvii]The Corps allegedly needed time to “look for documents.”[xxviii]The judge called this “insulting,” given that it only took the Corps “a few minutes to make a decision to open the dams that left people without homes and property.”[xxix]As of February 2018, the fact that the Corps knew about the flood risks and did not tell anyone for two days is the most recent revelation to come out of the Micu lawsuit.
A decision like this could have tremendous implications. A court holding that a flood constitutes a taking for the purposes of the Takings Clause would mean that there is a heavy burden on the government to disclose any and all risks associated with property it sells. The property owner must show that property rights were acquired without the payment of compensation. This could potentially impact the private sector as well. It would be helpful for plaintiffs who were unaware of the risks of the property they bought but could also open up suits for the real estate developers. They could potentially also sue the government. Inverse condemnation has been utilized as a legal tactic in the past, but it remains to be seen if Hurricane Harvey victims will be compensated for their property.
Alexandra Noll is an Associate Editor on MJEAL. She can be reached at email@example.com.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
Chris Huber et al., Hurricane Harvey: Facts, FAQs, and How to Help, World Vision, https://www.worldvision.org/disaster-relief-news-stories/hurricane-harvey-facts (last updated Feb. 14, 2018).
Harvey Destroyed More Than 15,500 Homes in Texas, ABC13 (Sept. 25, 2017), http://abc13.com/harvey-destroyed-more-than-15500-homes-in-texas/2454379/.
[vii]Kiah Collier, Can Flooded-Out Houstonians Win Lawsuits Against Army Corps?, Texas Trib. (Sept. 28, 2017), https://www.texastribune.org/2017/09/28/will-flooded-out-houstonians-prevail-lawsuits-against-army-corps/.
[viii]Kiah Collier, Can Flooded-Out Houstonians Win Lawsuits Against Army Corps?, Texas Trib. (Sept. 28, 2017), https://www.texastribune.org/2017/09/28/will-flooded-out-houstonians-prevail-lawsuits-against-army-corps/.
[xii]Alyson Ward, Lead Attorneys Appointed in Hurricane Harvey Flood Litigation, Houston Chron. (Nov. 22, 2017), https://www.chron.com/news/article/Lead-attorneys-appointed-in-Hurricane-Harvey-12376140.php.
[xvi]Lise Olsen, Lawsuit Says Army Corps Should Compensate Homeowners for Flooding Their Property With Reservoir Pools, Houston Chron. (Sept. 27, 2017), https://www.houstonchronicle.com/news/houston-texas/houston/article/Lawsuit-says-Army-Corps-should-compensate-12235977.php.
[xviii]Dara Lind, The “500-Year” Flood, Explained: Why Houston was so Underprepared for Hurricane Harvey, Vox (Aug. 28, 2017), https://www.vox.com/science-and-health/2017/8/28/16211392/100-500-year-flood-meaning.
[xxv]John Echeverria & Robert Meltz, The Flood of Takings Cases After Hurricane Harvey, Takings Litig. (Oct. 23, 2017), https://takingslitigation.com/2017/10/23/the-flood-of-takings-cases-after-hurricane-harvey/.
[xxvi]See generally Ark. Game & Fish Comm’n v. United States, 568 U.S. 23 (2012).
[xxvii]Andrew Schneider, Federal Judge Denies DOJ Request For Year-Long Delay in Suits Over Harvey Flooding, Houston Pub. Media (Dec. 22, 2017), https://www.houstonpublicmedia.org/articles/news/2017/12/22/258523/federal-judge-denies-doj-request-for-year-long-delay-in-suits-over-harvey-flooding/.