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By Perry Cooper
A 2016 Texas Supreme Court ruling and lessons from the aftermath of Hurricane Katrina point to a difficult road ahead for Houston-area residents seeking to hold county and other governmental bodies liable for flood damage from Hurricane Harvey.
“Based on what I see in the Texas Supreme Court opinion and what I know of the Fifth Circuit, I don’t see anybody really tying in blaming a governmental actor at this point,” New Orleans plaintiffs’ attorney Allan Kanner told Bloomberg BNA.
Kanner is a partner at Kanner & Whiteley LLC who specializes in environmental law and complex litigation. He has represented victims in prior flooding events and homeowners who sued the makers of defective Chinese drywall installed in thousands of homes rebuilt after Hurricane Katrina.
In that 2016 ruling, the state top court dismissed claims of homeowners who alleged that flood control decisions by officials of Harris County, which includes much of Houston, caused their homes to flood during tropical storms from 1998 to 2002.
Kanner expects to see many class actions filed in the wake of Harvey but doubts the courts will be particularly sympathetic to them given that such litigation was mostly unsuccessful after Hurricane Katrina and Superstorm Sandy.
But others involved in the recent Texas Supreme Court case say there still may be avenues open for residents to pursue claims against the government despite the Texas ruling and the general immunity from tort suits afforded government officials.
The Texas court, in its June 17, 2016 decision, held that Harris County officials didn’t effect a constitutional taking of their flood-prone property by approving private development without fully implementing a previously approved flood-control plan.
“The homeowners’ theory of takings liability would vastly and unwisely expand the liability of governmental entities,” the court.
But the top court ruling was a close one, 5–4, and was actually a reversal of an earlier decision of the court in favor of the homeowners.
An attorney who represented the Harris County Flood Control District in that case said the opinion “did not change the ability of citizens to bring a takings claim against a governmental entity as a result of flooding” in general.
Instead, “it merely applied existing law to the facts of that case,” Kevin Dubose, of Alexander Dubose Jefferson & Townsend LLP in Houston, who no longer represents the district, told Bloomberg BNA in an email.
The law says liability against a governmental entity for an unconstitutional taking must be based on an affirmative act, undertaken with the knowledge that the act will cause, or is almost certain to cause, identifiable harm, Dubose said.
Inaction, negligence or harm caused by historically heavy rainfall can’t be the basis of a takings claim.
“So whether Harvey flood victims have a cause of action against any governmental entity will be based on the application of those legal principles,” he said. He made his comments as a private citizen and an attorney with experience in the area.
Another attorney involved in the Texas case, on the plaintiffs’ side, also said the Texas ruling might only be limited to Fifth Amendment takings claims.
That would leave open claims under the Fourth Amendment prohibition on unreasonable seizure of property and the 14th Amendment right to due process, Mary Conner of Irvine & Conner in Houston told Bloomberg BNA in an email.
Conner is currently pursuing Fourth and 14th amendment flood-control claims against a Houston Tax Increment Reinvestment Zone on behalf of a group called Residents Against Flooding.
The suit alleges zoning officials implemented flood control projects that improperly sent stormwater into adjacent neighborhoods.
The case, which seeks infrastructure changes only, not damages, is now on appeal to the Fifth Circuit. A federal district court dismissed the suit, mistakenly believing it made a takings claim, Conner said.
But Kanner isn’t very optimistic that any litigation will take hold against the government as similar suits were largely unsuccessful after Hurricane Katrina. Those suits, which focused on the U.S. Army Corps of Engineers and its failed levees were ultimately dismissed by the Fifth Circuit, he said.
Another possible litigation approach, Kanner said, could be based on governmental officials’ lack of preparedness or “resiliency” in the face of climate change. But he doesn’t give that route much hope either.
“It’s possible that somebody may come forward with a duty to be resilient or anticipate those kinds of things, but I think it’s highly unlikely,” he said.
Kanner said he did succeed in certifying and settling an insurance suit after Katrina, but that was in state court. “The federal courts, in part because of the Fifth Circuit, are very reticent to touch these issues as class actions,” he said.
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