Constitutional Impediments to Flood Response

By Caleb Hall*

The onslaughts of Hurricanes Irma and Harvey are the first recorded instance where two category four hurricanes reached the U.S. Atlantic coast within the same calendar year. As of this writing, the Houston area death toll has reached over eighty, and Hurricane Irma has taken thirty-nine lives in the United States along with thirty seven in the Caribbean. These storms were not caused by climate change, but their impacts were intensified by it.[1] Americans are justifiably turning to governments for aid and planning to avoid future tragedies. Unfortunately, a U.S. Supreme Court decision endangers intelligent disaster response and flood management.

In Arkansas Game and Fish Commission v. United States (2012), the Court made the seemingly innocuous declaration that “government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection,” thereby reiterating that temporary physical occupations are still takings.[2] As a holding there is nothing unique or alarming about Arkansas. A safeguard against temporary takings of property is necessary lest governments erode constitutional protections by repeatedly yet briefly invading property, and subjecting governmental flooding to the Takings Clause is nothing new.[3] The precedent for temporary invasions of property being compensable takings is also longstanding.[4]

However, Arkansas’ surrounding facts do pose troubling ramifications. Arkansas sued the United States for flooding that occurred within the Dave Donaldson Black River Wildlife Management Area from 1994 to 1999. The ephemeral flooding occurred because the federal government recurrently responded to upstream flooding while also catering to the needs of downstream farmers. Arkansas’ taking theory was then premised on the actual damage to the Management Area and lost timber. On remand, this taking claim was upheld in part because the flooding was foreseeable and that the government’s water management was the cause-in-fact of Arkansas’ damage.[5] Foreseeability and causation were found using flood patterns before the dam was built and afterward, but such an analysis neglects the increased flooding and water needs we expect with climate change.

In Arkansas, the federal government released water for farmers while protecting upstream concerns, but was nonetheless punished. The particulars of Arkansas’ Management Area may justify finding a taking, but this result becomes less clear when future torrents create a Faustian choice for dam operators: take downstream land to save upstream water users, or vice-versa? If a levee is deconstructed in response to environmental needs, and flooding resumes naturally, do we still hold the government liable? These dilemmas are aggravated by vested water rights, which compel free flowing water, but were not considered by the Arkansas court.[6]

Due to human action, a warming atmosphere is leading us towards more severe flooding and more demands on governmental water managers, but Arkansas warns governments that responses to address climate change related flooding may expose them to takings claims. To be clear, the government should pay for every taking it commits, but such a requirement potentially places dam operators in a no-win situation where flooding is expected but policy responses are inhibited.

*Caleb Hall is a legislative analyst for the Missouri House of Representatives. This work is the sole product of the author and does not necessarily reflect the views or opinions of the Missouri House of Representatives, its members, or staff.

[1] See Kevin Trenberth, John Fasullo, & Theodore Shepherd, Attribution of Climate Extreme Events, 5 Nature Climate Change 725 (2015) (noting that recent natural disasters were exacerbated by climate change); see also Ning Lin et al., Hurricane Sandy’s Flood Frequency Increasing from Year 1800 to 2100, 113 Proceedings from the Nat’l Acad. of Sci. 12071 (2016) (indicating that New York’s floods will intensify due to sea level rise and climate change).

[2] 568 U.S. 23, 38 (2012).

[3] Pumpelly v. Green Bay Co., 80 U.S. 166 (1872).

[4] United States v. Westinghouse Elec. & Mfg. Co., 339 U.S. 261 (1950).

[5] Ark. Game & Fish Comm’n v. United States, 736 F.3d 1364, 1381 (Fed. Cir. 2013).

[6] Ark. Game & Fish Comm’n, 568 U.S. at 38.

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