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What the war in Ukraine means for energy, climate and food
21. FEDERAL BUDGET EXPOSURE TO CLIMATE RISK – FY 2023
The increasing claims on federal disaster relief money mean that states can expect ever diminishing federal disaster aid in the future.
Assignment
Hurricane Cases – Class Slides (annotated)
We are going to do a short, intense day on the hurricane litigation cases, including Katrina. I am providing you the cases for reference, but I am not expecting you to read them before class. You need to watch one recorded lecture on the cases and scan some background materials in a video and some newspaper articles. We will then discuss the cases and their policy implications for areas at high risk of flooding which believe that the federal government owes them protection.
We are going to look at what happened factually and at the core legal lesson, which is that the Federal government does not have a duty to protect communities from flooding. That is contrary to a prime myth in state and local government that the Federal government owes them protection from flooding.
In 1965, Hurricane Betsy flooded New Orleans as thoroughly as did Hurricane Katrina, and previous hurricanes back to the founding of New Orleans also flooded the city. Scan some of this video to see what Betsy looked like:
Remembering Betsy: WVUE-TV 09/1990
In the Graci case, filed after Hurricane Betsy, plaintiffs sued the Corps under the FTCA, alleging that the Mississippi River Gulf Outlet caused New Orleans to flood. Gracie is significant because the plaintiffs in the Katrina cases filed almost exactly the same claims in the same court. (I am giving you these cases for reference, you do not need to read them before class.
Graci v. United States, 456 F.2d 20 (5th Cir. 1971)
On remand – Graci v. U.S., 435 F.Supp. 189 (E.D.La. 1977)
The plaintiffs lost because the Court found no negligence. It also found that the flooding after the construction of the MRGO was no worse than the previous flooding. The key significance of the Graci case was that it did not depend on the DFE and was analyzed as if it were an ordinary private tort case. The Katrina plaintiffs’ lawyers, following Graci, also argued as if suing a private defendant, ignoring the DFE defense. This proved catastrophic.
Another Katrina myth is that the flooding was a surprise. These materials from the old New Orleans daily paper make it clear that the flooding was no surprise. Start with this graphic, showing what Hurricane Georges could have done to New Orleans a decade earlier. It has a great representation of the elevation of the city running from the highest point at the river to the lowest near the lake:
Going Under
The next materials are an amazing series of articles analyzing the risk of a storm such as Hurricane Katrina, written 3 years before Katrina hit New Orleans:
Washing Away: Worst-case scenarios if a hurricane hits Louisiana (2002)
Scan them to get a sense of the risk that was already known but that the city and the state failed to act on in preparing for the storm and evacuating the city. Sadly, the newspaper WWW site is not working so we are looking at them on the Wayback Machine. This is some of the best reporting done at the late Times-Picayune. The current Advocate takes a much less critical look at the coast.
Finally, we get the major Katrina case, which I am providing so you can reference it as they are discussed in this recorded lecture which should watch before class:
Video – Suing the Government after Hurricanes Betsy and Katrina
Narrated PowerPoint Slides – Suing the Government after Hurricanes Betsy and Katrina
In re Katrina Canal Breaches Consolidated Litigation, 647 F.Supp.2d 644 (E.D.La. Nov 18, 2009) Final opinion and appendix.
Levee Breach Liability District Court – Study Guide – PDF
This is long and complicated. There is no specific law to learn from it. (You can scan the appendix to see the exhibits.) We are looking at it for the story that the plaintiffs told the court and why the court bought that story. The opinion is based on the plaintiff’s lawyer’s record and experts, the government only put on a perfunctory technical and scientific defense because it believed, correctly, that it was entitled to immunity. The opinion is full of junk science. Unfortunately, many lawyers and most of the public believe that since the judge ruled for the plaintiffs, that story is true. The government just won on a technicality goes the myth.
The Takings Cases
I am going to review these cases in class. One of the key issues in the fight over whether the federal government owes local communities flood protection is whether a failure to provide adequate flood protection can be a taking. This theory arose as it became clear that the flood control decisions could not be attacked as torts, either because the FTCA DFE cut them off, or because FCA 702 immunity cut them off. As a constitutional right, Congress cannot cut off takings liability, so cases based on takings would not be subject to the DFE or 702. Again, the key case comes out of Louisiana and Hurricane Katrina:
St. Bernard Par. Gov’t v. United States, 887 F.3d 1354 (Fed. Cir. 2018)
I have highlighted the key points in the opinion.
The most recent major flooding event was Hurricane Harvey. This case arose from claims by downstream property owners who claimed that the Corps’ failure to protect them from flooding was a taking:
In re Downstream Addicks, No. 17-9002, 2020 WL 808686 (Fed. Cl. Feb. 18, 2020)
The Upstream Cases did find liability but on a very conventional analysis. The Corps had built earthen dams to detain floodwaters. It predicted the design capacity of the dam based on the safe level of water it could hold and bought flood easements on that land. This was smaller than the theoretical capacity of the dams because you do not want to completely fill an earthen dam. During Harvey, the water rose so fast and high that the Corps did not get the floodways open fast enough to keep the dam from filling beyond design capacity. The court found that it should have bought out all of the land that could potentially flood and that the homeowners in the flooded area had suffered a taking. I think this is wrong, it should have been a tort claim under the FTCA, but it is not a crazy ruling. It is still in process in the Court of Claims and may yet be appealed to the Fed. Cir.
Resources
Basic hurricane science
If you want a deep dive into the complex litigation over Hurricane Katrina damage – this is not required for class – read my article on the Katrina litigation: The Hurricane Katrina Litigation Against the Corps of Engineers: Is Denial of Geology and Climate Change the Way to Save New Orleans?
National Hurricane Center Final Report on Hurricane Ida (4 April 2022)