Hurricane Harvey Litigation Replace: Conflicting Opinions Hint Course of on Harm and Attraction | Cozen O’Connor
Hurricane Harvey litigation has continued since the first lawsuit was filed within days of Harvey landing on August 25, 2017, and inundated Houston with an unprecedented amount of rainfall and flooding. The lawsuit pending in the US Court of Federal Claims revolves around the US Army Corps of Engineers’ decision to clear the Addicks and Barker reservoirs after Harvey landed. These reservoirs were built in the 1940s to reduce the potential for catastrophic flooding in downtown Houston and the Houston Ship Channel.
After Harvey landed, the reservoirs filled at an alarming rate and water flowed around the edge of one of the dams. On the morning of August 28, 2017, the US Army Corp of Engineers had to begin releasing water to ensure the reservoirs did not experience a catastrophic overflow and / or failure. The properties that were affected by flooding due to the overfilled reserves of the reservoirs are referred to in the legal dispute as “upstream applicants”. The properties that were flooded after the reservoirs were intentionally released are referred to as “downstream applicants”.
Regarding the status of the litigation, Judge Charles F. Lettow, who oversaw the actions of upstream claimants, heard testimony in May 2019 and received evidence of certain test or “bell weather” claims. He issued his statement and order in December 2019, noting that the government’s behavior in relation to the reservoirs and the associated flooding of various properties constituted an unconstitutional “use” of a flow relief under the Fifth Amendment to the US Constitution and that the upstream Applicants were therefore entitled to government compensation. Judge Lettow then ordered that the test cases should continue to reveal damage, provided he received testimony about the damage to the test properties in November 2020. Unfortunately, the damage phase seems to have continued for the time being, presumably due to COVID-19-related issues.
Conversely, Judge Loren A. Smith, who oversaw the litigation related to the actions of the downstream petitioners, granted the government’s motion to effectively rule that neither Texas nor federal law protected property interest in perfect flood control in the face of an “Act of God ”. ”The final decision was carried out in September 2020 and the downstream applicants have officially started the appeal process.
The upstream claims currently have the most realizable handover potential, as Judge Lettow, who monitors these claims, has already issued a positive liability statement against the government. Although the downstream claims are more challenging given the opposition ruling and the pending appeal proceedings, we still recommend referencing such claims to ensure that the viability of the claims is protected in the event that the opposition ruling is ultimately overturned.