Academic journal article William and Mary Law Review

When (and Why) the Levee Breaks: A Suggested Causation Framework for Takings Claims That Arise from Government-Induced Flooding

Academic journal article William and Mary Law Review

When (and Why) the Levee Breaks: A Suggested Causation Framework for Takings Claims That Arise from Government-Induced Flooding

Article excerpt

TABLE OF CONTENTS  INTRODUCTION                                                         604   I. How WE GOT HERE                                                 607      A. Government Tort Immunity                                     607      B. The Takings Clause as an Alternate Source of Liability       609  II. SUPREME COURT PRECEDENT                                         612      A. The Supreme Law of the Land: Temporary Government-Induced    612         Flooding May Constitute a Taking      B. Litigants Will Continue to Bring Similar Claims              614 III. INCONSISTENT CAUSATION FRAMEWORKS ON DISPLAY:                   614      THE ST. BERNARD PARISH LITIGATION      A. Factual Background                                           615      B. The Court of Federal Claims Decision                         617      C. The Federal Circuit Decision                                 619      D. The Current Law After St. Bernard Parish and Arkansas Game   620  IV. A SUGGESTED CAUSATION FRAMEWORK                                 622      A. Key Policy Implication                                       622      B. Approaches Taken in Prior Federal Court Decisions            625      C. A Suggested Causation Framework                              628   V. LIKELY COUNTERARGUMENTS                                         630      A. Taking or Tort: Are These Lawsuits Theoretically Sound?      630      B. Too Much Deference to the Federal Government?                632 CONCLUSION                                                           633 

INTRODUCTION

In 1968, the United States Army Corps of Engineers finished constructing the seventy-six-mile Mississippi River-Gulf Outlet (MR-GO) navigational channel. (1) Congress authorized the Army Corps of Engineers to begin construction to create a shipping route between New Orleans and the Gulf of Mexico. (2) However, the MR-GO also caused significant erosion and other environmental detriments that greatly increased the risk of flooding around its vicinity. (3) The Army Corps of Engineers learned about many of these detriments and risks through numerous studies it conducted between 1998 and 2005, but never fully addressed them. (4)

Hurricane Katrina eventually showcased the MR-GO's defects in violent fashion. The MR-GO severely worsened Hurricane Katrina's effects (5) and Louisiana landowners resultingly incurred catastrophic flood damages. (6) To make matters worse, many injured landowners who sought compensation from the federal government for its construction of and failure to maintain the MR-GO instead experienced protracted and ultimately unsuccessful litigation. (7)

Unfortunately, an array of other powerful hurricanes and tropical storms in recent years have also brought devastation (8) and repeatedly sounded the alarm on an uncomfortable scientific truth (9): sea levels are rising (10) and causing substantial flooding. (11) Though the federal government has attempted lofty infrastructure projects to address rising sea levels throughout the years, many of these projects have suffered from mismanagement and a dearth of basic maintenance. (12) Indeed, some projects originally built to prevent flooding have instead intensified it. (13) When an infrastructure project actually causes more severe flood damages than would have occurred without its construction, how might an affected property owner win compensation from the federal government?

A property owner who sues the federal government in tort will almost certainly fail, considering that one cannot sue the federal government unless the federal government consents to being sued. (14) With this in mind, some litigants have instead alleged that government-induced flooding amounts to a taking compensable under the Fifth Amendment. (15) Variations of this recovery method's theoretical underpinnings have received much scholastic attention in recent years. (16) Nonetheless, in Arkansas Game & Fish Commission v. …

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