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Texas Court Rules Deliberate Flooding of Private Property by State Government in Wake of Hurricane Harvey can be a Taking

The ruling concerns flooding of property undertaken by the San Jacinto River Authority in order to mitigate the effects of Hurricane Harvey. Issues raised in the case are similar to those at stake in ongoing federal court litigation.

Flooding in Houston caused by Hurricane Harvey. (LM Otero/AP)Flooding in Houston caused by Hurricane Harvey. (LM Otero/AP)

Earlier today, the Texas Court of Appeals for the First District issued a notable ruling in a takings case arising from deliberate flooding of private property by the government in the wake of Hurricane Harvey, which hit the Houston, Texas area last year. In an opinion by Justice Michael Massengale, the court ruled that the San Jacinto River Authority's flooding of numerous privately owned properties could potentially qualify as a taking requiring compensation under the Texas state constitution, and therefore allowed the property owner's lawsuits against the agency to proceed. The River Authority flooded numerous privately owned homes and other properties in the hope that doing so would prevent still worse flooding elsewhere, resulting from the hurricane.

The case was decided based on a Texas state law allowing owners to sue for compensation for "governmental action[s]" that result in a taking under the Texas or federal constitutions. The issues at stake in the case are very similar to those currently being litigated against the federal government in the Court of Federal Claims. The US Army Corps of Engineers flooded a much larger number of properties in the wake of the very same hurricane, and for much the same sort of purpose: preventing even greater damage elsewhere. The two sets of cases involve similar arguments.

Justice Massengale's opinion (rightly, in my view) rejects the River Authority's argument that there could not have been a taking because the flooding of the plaintiffs' homes was the result of a "confluence of particular circumstances," including the hurricane itself. As he points out, the owners have substantial evidence indicating that their properties either would not have been flooded at all absent the Authority's actions, or at least would have suffered far less damage. He also expresses skepticism about the Authority's argument that there can be no taking unless the plaintiffs can prove that the Authority specifically foresaw that their specific properties would be flooded.

In my view, as long as the government knew or should have known that its actions would flood at least some private property, it should be liable for a taking even if they did not know ahead of time exactly what property it would be. To make an admittedly rough analogy, a person who deliberately or negligently fires a gun into a crowd and kills someone is liable for wrongful death, even if the shooter could not know ahead of time exactly which person he would hit. In this case, however, the court did not definitively resolve the issue of "specific intent," because the plaintiffs presented evidence indicating that the River Authority could indeed foresee that their specific properties would be flooded.

The court also refused to adopt the River Authority's theory (very similar to the federal government's in the federal case) that there can be no taking if they only flooded the plaintiffs' land just one time, as opposed to recurrent flooding. Justice Massengale did not make a definitive decision about whether this "one flood free" theory is valid, but was clearly skeptical of it. He does not resolve the question because he concludes that the plaintiffs had presented evidence of previous government-created flooding in the same areas, sufficient to show a recurrent pattern.

The ruling also addressed a number of procedural issues. I will not cover them here, as they are significant to the broader constitutional questions at stake.

This Texas state decision is obviously not binding on the federal court considering very similar cases against the federal government. But the two cases raise related issues, and Justice Massengale's opinion could help influence the federal court in the plaintiffs' favor, if the outcome is otherwise in doubt.

In this October 2017 post, I discussed the key constitutional issues at stake in the federal Harvey flooding litigation. The cases are important both in their own right, and as potential precedents for the future. It is particularly important that the courts reject the "one flood free rule" and other similar subterfuges that would give government agencies a relatively free hand to inflict enormous damage on private property without paying compensation. In that post, I emphasized that the fact that the deliberate flooding here may have been a wise, well-intentioned decision does not mean there was no taking:

[T]he federal government claims that it had good reasons for flooding the affected land. In the Houston case, the goal was to prevent even greater flood damage from occurring.... But the fact that the flooding might have been a good policy (or at least the lesser of the available evils under tragic circumstances) does not mean there was no taking. As the Supreme Court famously put it in a 1960 case, the whole point of the Takings Clause's just-compensation requirement is to "bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Even if the "public burden" is entirely justified, that does not mean it should be inflicted on the property owners, as opposed to "the public as a whole." That is true when the government takes property to build a highway or military base that benefits the general public. It is equally true when it floods some people's property to prevent potentially greater devastation elsewhere.

Longtime Volokh Conspiracy readers may be interested to know that this is apparently the third Texas state court decision that cites a VC post (in this case, my 2017 post on the federal Harvey takings litigation).

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  • BaronGouldianFinch||

    Where exactly do takings become separated from emergency actions? I know it's legal and "not a taking" for the government to destroy property in some circumstances. I think the classic example is the Great Fire of London - the government blows up one house to set up a firebreak to save the rest of the city. Presumably the logic there is that the house almost certainly would have been lost in the fire if no action was taken.

    At what point does this become the government version of the Trolley Problem?

  • bernard11||

    Where exactly do takings become separated from emergency actions?

    Why does something have to be one or the other? Surely a fully legitimate emergency action can involve a taking.

    I don't know about the London case, but here it was not at all clear, or even seem to have been argued, that the property in question was going to be flooded regardless.

    The court's decision looks obviously right to me.

  • BaronGouldianFinch||

    The question is whether you want "takings" to potentially impact the reaction to an emergency. Assume the hypothetical that there is a roaring fire. The mayor and police need to set up a fire break to stop it. They decide your house will be destroyed.

    Do they have to hold a hearing right then, and pay you, before destroying your house? Do they decide to let more of the city burn to set up the line somewhere else, because your house would be really expensive to pay for, but if they let another four blocks burn the land value is cheaper? Does the mayor decide it's just too expensive to pay anything and let the whole city burn so everyone is responsible for their own losses?

    The rationale has traditionally been you don't WANT the people in an emergency hindered by having to think through EVERYTHING instead of, you know, stopping the problem.

  • TwelveInchPianist||

    They can stop the problem first, and pay compensation later. Of course, you may be correct that compensation is not required in the situation that you describe. IIUC this is called the "conflagration rule". But this rule is probably wrong. If the many wish to destroy the property of the few to save the property of the many, then the many can compensate the few.

  • David Welker||

    How about this.

    If the property of the many must be destroyed to save the property of the few, the few can compensate the many. That logic is EQUALLY valid.

    Saying that if the government does not act to do what it is RIGHT (limiting the threat to property and lives), it is liable and GUILTY, but if it is acts to do what is WRONG (allowing more damage to property an lives) it is not liable and INNOCENT, is extremely perverse.

    If the "few" want to be insured against a fire or a flood, they should buy fire and flood insurance. The same for the "many." In the meantime, when disaster strikes, the government should act to minimize the damage. If we are going to have liability for the government, such that asking for a handout becomes a substitute for buying insurance for natural disasters, that liability should attach only when the government makes bad decisions that increase the total amount of damage. Here, liability only attaches when the government does the opposite.

    If we want to compensate people who are in s natural disasters, even though they made a choice to go uninsured, we should do so in a more principled way than this. This becomes a system of extra government insurance, but which only benefits a few people rather than everyone.

  • TwelveInchPianist||

    "If the property of the many must be destroyed to save the property of the few, the few can compensate the many. That logic is EQUALLY valid."

    Also correct, sure.

    "Saying that if the government does not act to do what it is RIGHT (limiting the threat to property and lives), it is liable and GUILTY, but if it is acts to do what is WRONG (allowing more damage to property an lives) it is not liable and INNOCENT, is extremely perverse."

    But nobody's saying that. As I pointed out below, the government isn't a self-interested entity trying to minimize its own liability. If officials allow large amounts of property to be destroyed in order to avoid having the government pay for a small amount of property, people should vote them out of office. It's not like the officials have to pay the compensation themselves, there job is to manage public resources, and make the right tradeoffs between property damage and tax revenue.

  • David Welker||

    The government often IS a self-interested entity.

    Politicians like to have more money to spend. Liability causes them to have less money to spend.

    Maybe they will overcome these bad incentives and do the right thing anyway. Maybe they will be voted out of office if they fail to overcome the bad incentives.

    But I would not be shocked if the bad incentives end up mattering more. You would think that doing harm to citizens would cause politicians to lose their jobs. But look at all these cities and local governments who end up fleecing their own citizens, imposing excessive fines and abusing asset forfeiture.

    If bad incentives were not a problem, we wouldn't have to worry about government officials abusing fines as a way to collect revenue instead of enhance public safety or using asset forfeiture inappropriately as a cash cow. We could just always trust them to do the right thing, and expect, that if they didn't, surely the voters would throw them out. But that isn't really how things work in the real world. We DO have to worry about elected government officials abusing their powers, even though they are elected.

  • TwelveInchPianist||

    "Politicians like to have more money to spend. Liability causes them to have less money to spend."

    And they like getting re-elected. Allowing lots of property to get destroyed causes them not to get re-elected. You're only looking at one set of incentives.

  • David Welker||

    You are assuming that democracy has a level of efficiency that is much greater than reality.

    How would a politician be held accountable here?

    (1) First, the public would have to understand that a bad choice was made. But the public does not have expertise in handling natural disasters. You are depending on the media to heavily report on this, but that may or may not happen.

    (2) There is a lag between the decision and election. When you choose to vote for a politician, often you are forced to choose the lesser of two evils. The lesser of two evils might have done some pretty lame things.

    There is a reason we have a Bill of Rights. That is, because politicians cannot be trusted. If we could completely trust politicians (along with voters to hold them accountable), we would not need a Bill of Rights. You think it is ok to give politicians bad incentives. I think differently. We need BOTH elections AND good incentives. You are relying too much on elections to overcome bad incentives.

  • UVaGrad||

    Do they have to hold a hearing right then, and pay you, before destroying your house?

    No. The city or whomever can, and should, destroy your house in that circumstance assuming your house is the only way to save the rest of the city. Then you simply file an inverse condemnation claim after the fact to get compensation.

  • bernard11||

    If the many wish to destroy the property of the few to save the property of the many, then the many can compensate the few.

    This seems right.

    The point is that there is a cost to the house burning down. You can't avoid that. The only issue is who should bear that cost.

    I think it should be those who benefitted - whose property was saved - and not the poor guy whose house burned.

    Should the mayor try to figure out the cheapest house to let go? Not in an emergency.

  • Stephen Lathrop||

    Those who benefit get compensated by being insured—including the guy whose house was destroyed to create the fire break. That spreads the costs of public safety as justly as anything can, without creating a perverse encouragement for heedless private activity to increase public costs—either in terms of costs to the public fisc, or in terms of increasing the cost of private insurance. Keeping both of those costs down requires freedom for government to minimize natural disasters by the most efficient means available.

  • Captain Hindsight||

    They're not being hindered by threat of criminal prosecution, or anything significant. In fact, they're not being asked to do anything they didn't already do.

    At the end of the day, they did a cost benefit analysis and determined the cost of flooding these private properties was outweighed by the benefits (saving many other properties/lives/whatever they used to justify their actions). However, they should still bear the cost part of this analysis, as this flooding was brought on as a result of their actions.

  • BaronGouldianFinch||

    You said " here it was not at all clear, or even seem to have been argued, that the property in question was going to be flooded regardless."

    I don't disagree. That's why my general question was is there a point at which this becomes the government version of the Trolley Problem - do we flood this house (that wasn't at risk) to save five other houses (that were at risk). I don't have an answer to that one.

  • TwelveInchPianist||

    It's easier than the trolley problem, because it's not really a moral problem. If the trolley is going to run into my house, and I throw the switch and send it into your house, should I have to compensate you? Sure, why not?

  • bernard11||

    The difference is that the trolley business has to do with human life.

    When you put it simply in terms of property the answer is very clear to me. What would you do if you owned all six houses in your example, and the decision was left up to you?

  • MatthewSlyfield||

    "I know it's legal and "not a taking" for the government to destroy property in some circumstances. I think the classic example is the Great Fire of London - the government blows up one house to set up a firebreak to save the rest of the city."

    Your "classic" example is completely irrelevant to US law, constitutional or otherwise. I am not convinced that a US fire department would have the authority to take similar action.

  • BaronGouldianFinch||

    Actually it's part of US Common Law, because it arose before 1776. And it is the "conflagration rule" (as mentioned by another commentor) specifically holding a public official fighting a raging fire may destroy property without compensation in order to create a firebreak.

    Flooding houses could easily become a trolley problem when you account for the fact that people may not have evacuated or even have time to evacuate. Hypothetical - you are in charge of a dam. A fast moving flood is coming down the river. You can either let the dam overflow, collapsing the dam and flooding 100 homes, which are all occupied. Or you can flood 10 homes, also occupied. Which do you do?

    There may not BE a single right answer.

  • Bob from Ohio||

    "I am not convinced that a US fire department would have the authority to take similar action."

    I bet it is legal and within the department's authority to stop harm to other buildings.

    Ohio Coded 737.11 says "The fire department shall protect the lives and property of the people in case of fire." Seems pretty broad.

    Compensation is a different question.

  • James Pollock||

    "Your "classic" example is completely irrelevant to US law"

    Perhaps. The one we read in 1L was in the Great San Francisco Fire, but the fact pattern was similar... they dynamited buildings to make a firebreak.

  • tkamenick||

    It's less about whether the action was "wrong" than who should bear the cost of that decision. If the whole community benefited by flooding Property A to avoid flooding Properties B-Z, the whole community (via taxation) should bear the cost - and should bear it gladly.

  • bevis the lumberjack||

    I live in the area where the plaintiffs in this case live. The problem is that there are two lakes (Lake Conroe and Lake Houston) along the same river that are in close proximity to each other in a flood prone area. Lake Conroe is upstream from Lake Houston. It's routine for the SJRA to start releasing from Conroe early any time there is a warning that floods are possible, purportedly to insure that the dam at Conroe doesn't fail. That routinely leads to more severe flooding downstream that would otherwise have occurred. And since Harvey was the Mother of all Floods it led to a catastrophe in the area around Lake Houston.

    Not sure what the solution is here, as the SJRA basically owns themselves a shit sandwich. Since Harvey, they've been doing a lot of dredging of the river channel between the two lakes to try to increase the capacity of the system, but I gotta believe that's going to have a marginal impact.

  • RoyMo||

    And what about if they just removed the dam? That would do wonders for flood control downstream in the next storm.

  • James Pollock||

    No, no, no.

    They should not remove the dam.

    They should just do nothing when the next hurricane comes, and God will do it for them, and God is completely judgment-proof due to lack of jurisdiction. (Despite the claim that He is everywhere, He does not respond to court summons.)

  • UVaGrad||

    He also expresses skepticism about the Authority's argument that there can be no taking unless the plaintiffs can prove that the Authority specifically foresaw that their specific properties would be flooded.

    Intent/fault/etc matters under Texas law for inverse condemnation claims? California actually handles this one correctly, imposing strict liability in inverse condemnation cases.

  • EscherEnigma||

    This makes me think of the classic Trolley Problem.

    Applying the circumstances here...

    San Jacinto River Authority sees a runaway flood moving toward a high number of properties. They are standing next to a lever that controls a switch. If they pull the lever, the flood will be redirected onto a side path and the high number of properties will be saved. However, there is a small number of properties in that path. They have two options:

    Do nothing and allow the flood to destroy the high number of properties in the flood path.
    Pull the lever, diverting the flood onto the side path where it will destroy a small number of properties.

    Which is the more ethical legal option?

    It's interesting because when you add in the government only paying for damages in one scenario, it spikes the risk analysis from being about minimizing damage to minimizing liability. And while that may make sense for a business, it's problematic for a government.

    I wonder if there's some sort of "good Samaritan law" that might apply.

    Interesting case.

  • bevis the lumberjack||

    "Do nothing and allow the flood to destroy the high number of properties in the flood path.
    Pull the lever, diverting the flood onto the side path where it will destroy a small number of properties."

    In this specific case, the number of properties exposed in your Scenario A and in your Scenario B are roughly the same. I don't know what criteria SJRA uses to decide, but I suspect it involves trying to distribute the excess water across two reservoirs instead of one.

    Problem is that in this case they didn't foresee 50+ inches of rain falling in a couple of days across an area of 5 or six counties. In fairness, I'm not sure anybody could. But the end result is that you had properties flood that were nowhere near any established floodplain. Properties that were several miles from any body of water ended up with 5'-10' of water in them. Thousands of houses were ruined.

  • David Welker||

    So, let me get this right. If the government allows MORE damage to occur, it is innocent. But if it takes action so that LESS damage occurs, it is guilty.

    Why should not the governments willful choice to NOT act, allowing even more damage, not be a taking claim for those who suffer more damage?

    Let's say we did say that not acting was also a taking. In effect, the government is acting as a sort of insurance policy. If it allows the greater damage, it is insuring the people who suffer greater damage. If it allows less damage, it is insuring the people who suffer less damage. That isn't good. Especially because in both cases the insurance is arbitrary, covering only some people but not others. I have a better idea. People who want flood insurance should buy flood insurance rather than trying to get the government to pay. Making the government an insurer, but only for some people, but only when it does the right thing and not when it does the wrong thing makes no sense whatsoever.

    If the government made the wrong decision, I think liability would be appropriate. But in this case, it may be that liability only flows if the government makes the right decision. With such skewed incentives, there is a possibility that some government officials make the wrong decision in a way that costs both property and lives because that is the incentive that this sort of decision will create. That's crazy.

  • TwelveInchPianist||

    You're assuming that the government's objective is to minimize its own costs. This isn't necessarily true.

  • David Welker||

    And you are assuming that if we create bad incentives for the government, those bad incentives won't cause it to do the wrong thing to avoid liability.

    It could be that the government does the right thing (minimizes damage to both property and people) even though it will face liability for doing so where it will not face liability for doing the wrong thing.

    But I wouldn't be so sure. I would HOPE you are right and government's would ignore the liability issue. But I wouldn't count on it.

    I think a better solution than trying to use the government as a sort of insurance in this situation is to buy flood insurance. And don't let insurance companies wiggle out of paying if the government actions to minimize damage is an "intervening cause."

    If you want to be compensated for flood damage, you should buy flood insurance. But, if we are going to have a policy of using the government to compensate people for flood damage even if they don't have flood insurance, we should do it in a principled way. It should not be based on luck.

  • James Pollock||

    "If you want to be compensated for flood damage, you should buy flood insurance."

    You might want to research how tightly woven the government is with flood insurance.

    The problem with flood insurance is that insurance companies can read maps... they know where the flood is going to go when it happens, and they don't want to insure those properties (go figure).

  • David Welker||

    If a private insurance company does not want to insure a property, that may be a sign that building a house in that location is not a good idea. Or that, if you do decide to build there anyway, your investment is at risk.

    The government is already involved in flood insurance and maybe that is a bad thing. But I think that is a point which is orthogonal to whether the government should be liable for reducing the overall harm of a flood, just in case that overall harm reduction increases harm for some people.

  • James Pollock||

    "If a private insurance company does not want to insure a property, that may be a sign that building a house in that location is not a good idea. Or that, if you do decide to build there anyway, your investment is at risk."

    I am in complete agreement with both points. The thing is, the people who NEED flood insurance are the people who can least afford it at market rates

    " But I think that is a point which is orthogonal to whether the government should be liable for reducing the overall harm of a flood,"

    They are, because they already are. Government is just the people, and they (government) do things to pool resources to deal with problems that are too big for the people individually to deal with. Keeping foreign armies out, for example, and yes... dealing with natural disasters (and some, but only some, manmade disasters.) So we WANT the government to build and maintain levees and dams and reservoirs and whatnot. Like anything else, though, there should be some accountability... the present quibble is just about how much there should actually be.

  • TwelveInchPianist||

    "And you are assuming that if we create bad incentives for the government..."

    Who says we're creating bad incentives? Politician's main incentive is to get re-elected, which won't happen if they allow lots of property to get destroyed.

  • David Welker||

    If a private insurance company does not want to insure a property, that may be a sign that building a house in that location is not a good idea. Or that, if you do decide to build there anyway, your investment is at risk.

    The government is already involved in flood insurance and maybe that is a bad thing. But I think that is a point which is orthogonal to whether the government should be liable for reducing the overall harm of a flood, just in case that overall harm reduction increases harm for some people.

  • MatthewSlyfield||

    "If a private insurance company does not want to insure a property, that may be a sign that building a house in that location is not a good idea."

    The US government subsidizes flood insurance, but you can only get subsidized flood insurance if you are in a recognized flood plain. It is very difficult if not impossible to get unsubsidized flood insurance.

  • David Welker||

    First of all, excuse my reply to you which was meant for James above.

    Second of all, you seem kind of naive about how elections work.

    It is like saying, if a politician every said anything foolish, they would not be elected. But then we have Trump. And I will tell you why we have Trump. Because many people thought he was the lesser evil compared to Hillary Clinton.

    Politicians can do bad things and still be elected. Therefore, we need good incentives for them when they are in office. And a politicians only incentive is not to be re-elected. They also want to exercise power and influence. Legal liability, which reduces their power and influence, is something they seek to avoid. The politician not only wants the job, they want to enjoy the job.

  • EscherEnigma||

    Ah, the simple answer occurs to me.

    Whatever company, group, or entity would be responsible for emergency actions to minimize damage in a flood is also the same company, group or entity responsible for flood insurance.

    That way the people making the emergency decisions of who's ox is gored is also the one paying out for the gored ox after all is said and done, but in a way that they're incentivized to minimize said goring of oxs.

  • David Welker||

    I think it is kind of amusing.

    Somin's mission has been to show that stronger property rights benefit the poor and minorities, not just those who are well off.

    But think about it. Let's say you have a very expensive mansion. It is "worth" billions of dollars. And then you have an entire neighborhood of middle class people who own homes that are not, in aggregate, worth much more than that single mansion.

    Let's say you have a natural disaster. If nothing is done, there will flooding in the neighborhood and, since people haven't been evacuated, many people will die. In contrast, the government could divert the waters so that the mansion is destroyed, but no one will die. And this will save both property and lives overall.

    In Somin's world, there should be no liability for the government's failure to act, even if it causes many deaths and much more property damage. But if the government does the right thing and prioritizes saving lives over preventing damage to the mansion, then the government is liable. Those are bad incentives. Maybe, the government will overcome these bad incentives and do the right thing. But maybe not. What is much worse, creating bad incentives like this not only puts property at risk, but also lives.

    That is both perverse and crazy. And it makes a point very much opposite of the one that Somin claims.

  • apedad||

    You add the element of saving lives--which is unfair.

    Yes, of course the govt should ALWAYS prioritize saving life over property.

    But that's not the case in Texas; we're talking about prioritizing one property over another--and that's something the govt cannot/should not be involved with.

  • Mesoman||

    If this is a taking, then certainly the many cases where property has been reduced in value, often drastically, for environmental reasons should also be takings! After all, if an emergency action that may very well have saved lives results in a taking, certainly an environmental habitat restriction is less critical to the interests of the government.

    And yes, they should be treated that way. Why haven't they been?

  • MatthewSlyfield||

    They have been in some cases, do some research on regulatory takings.

  • DjDiverDan||

    While I'm encouraged that this judge was skeptical of the "one flood free" rule, it's a shame that Federal Judges are not equally skeptical of the "one (or several) constitutional violations free" rule when it comes to qualified immunity jurisprudence.

  • James Pollock||

    I remember reading a case back in law school about dynamiting buildings to create a firebreak during the great San Francisco Fire, and the necessity defense. How would diverting floodwaters be differentiated?

  • Ben of Houston||

    I have to disagree with this ruling for the following reason: These people knowingly built their homes in a reservoir. This was a well known fact that was disclosed to them when they purchased their homes and built their houses. The fact that the government enacted the pre-published plans in the case of a 100-year flood does not mean that people are entitled to compensation. They closed the gates of the reservoirs that were built to prevent even more severe flooding in the downtown region. They probably saved a good fraction of the city of Houston.

    This was the reason land was so cheap when they built Cinco Ranch and all those other subdivisions. You have to assume some risk for your actions, y'all.

  • bevis the lumberjack||

    This lawsuit involves the Conroe dam and Lake Houston, not Barker Cypress and Addicks. The plaintiffs are from Kingwood, not Katy. Properties that flooded were not in any recognized floodplain. Town Center in Kingwood had 7 feet of water in the buildings, and it's 3 miles from the San Jac.

  • Ben of Houston||

    Sorry, seeing red and not reading thoroughly. Thanks for the correction.

  • James Pollock||

    "Properties that flooded were not in any recognized floodplain."

    The way water works has been worked out pretty well by engineers. Are you telling me that in Texas, water works different? Or that Texas engineers haven't worked it out yet? Or did the government somehow make water flow uphill?

  • bevis the lumberjack||

    Ben - No need to apologize. I think the people that were affected by Barker and Addicks have also sued - it's referenced and linked in the body of the article - but that's a different suit against a different entity.

    James - No, that's not what I'm telling you. I'm an engineer myself and I understand how water works, as do the rest of the engineers down here. I'm telling you that 1000-year floods happen every once in a while, and that thousands of properties that flooded during Harvey (both in the area that is the subject of this lawsuit and in other areas) were not identified as being in any designated floodplain. When you've got an unprecedented event, unexpected things happen. Find the map of the identified floodplains and overlay it with the map of land that Harvey flooded and you'll see what I mean. And I don't understand the....aggressiveness...of your response.

  • James Pollock||

    " And I don't understand the....aggressiveness...of your response."

    Because of the claim that flooded properties were not in the floodplain is... remarkably dumb.

    Apparently, what you meant to say was "these guys didn't know their properties were in the floodplain", which means that THEY were dumb, because, as you conceded, the properties of water are well-understood.

    Note that your response to me ALSO has a bit of dumbness, since it encapsulates "We didn't know it would rain so much, therefore the government should pay"

    Now, you can take a couple of possible interpretations of the Divine act of dumping a LOT of water on Houston. Maybe God is mad at the United States for letting gay people be gay, AND have cakes at their weddings. Or maybe He's just made at Houston, for being so economically tied to the processing of fossil fuels, which are messing up the climate He created for us.

  • bevis the lumberjack||

    "Because of the claim that flooded properties were not in the floodplain is... remarkably dumb."

    So, all of North America is just one big floodplain, I guess, since it's all been under water at some point.

    Expecting people to expect an event that literally hasn't happened in recorded time and calling them dumb when it doesn't is....remarkably arrogant. Hopefully for your sake you never get bit by an event with a 0.1% chance of happening so people can't laugh at your own stupidity.

  • Stephen Lathrop||

    As an engineer, bevis, presumably you are able to calculate the probability that something will in fact occur during a 50-year interval, if it has a 0.1% chance of occurrence annually. Perhaps you should do that calculation, and tell us if the result, repeated in one flood-prone area after another, across giant regions of the nation, represents trivial risk.

  • Spellbound||

    The chance of a 0.01% annual risk flood occurs at least once in a 50 year period is a little less than 5%. I would say this is trivial risk over this period.

    It's a bit less than 10% in 100 years.

    It's about 40% in 500 years.

    And, it's 63% in 1000 years.

    Note the "at least once". It could happen every year. However, that's very unlikely. For example, in the first case of 50 years, there's a almost 5% chance of it happening "at least" once, but there's a 0.1% chance of it happening "at least" twice and a 0.00001% chance of it happening "at least" three times.

    Further to the analysis, flooding in this case is a yes/no criteria. A foot of flooding is a far different outcome than 10 feet of flooding, but the model treats these the same. The legal definition is pretty much 'covered in water or mud'. So "flooded" could be a 1/2 inch, where won't rise above modern code foundation heights or 10', where you're on the roof of your one story house awaiting rescue. 0.001% hides a lot of important information. If you think a 5% chance of a 1/2 inch of water on the ground is "high risk", I have some asteroid insurance to sell you.

  • Stephen Lathrop||

    Spellbound, good thinking, but incomplete. Now apply that < 5% to all the watersheds in nation, one-by-one, cumulatively, and tell me whether you still think it's trivial. What means do you propose to mobilize to enable government to compensate victims on the necessary scale?

  • jph12||

    "Apparently, what you meant to say was "these guys didn't know their properties were in the floodplain", which means that THEY were dumb, because, as you conceded, the properties of water are well-understood."

    No, you fucking moron, what he meant to say is what he said. That you are too stupid to understand it is your own fucking fault.

  • James Pollock||

    "No, you fucking moron, what he meant to say is what he said"

    So... you're whiteknighting out of nowhere by arguing that he actually meant to say the stupider thing?

    I'm glad you're not MY ally.

  • Stephen Lathrop||

    bevis, for reasons I mention elsewhere, referencing designated floodplains should not exhaust a cautious policy maker's duty of care, especially when there is a dam around.

    You know what is easier than looking at a floodplain map, and far more reliable, especially for a person looking to buy property? Look up the elevation of the dam's spillway, and compare it to the elevation of your proposed foundation. If the spillway elevation even approaches the foundation elevation, find another site.

    Turns out this controversy is founded in attempts by irresponsible politicians, in cahoots with irresponsible developers, to deflect blame for a disaster caused by irresponsible real estate marketing. Or, if you prefer, caused by extreme anti-regulatory ideology, invoked with an eye to profiting off suckers.

    For specifics, google:

    Everyone Knew Houston's Reservoirs Would Flood — Except for the People Who Bought Homes Inside Them

  • Stephen Lathrop||

    Town Center in Kingwood had 7 feet of water in the buildings, and it's 3 miles from the San Jac.

    Flood plains north of the Gulf Coast are extremely expansive, bevis. Three miles isn't even a notable fraction of the extent of many of them, which are measured in tens of miles. If the flood waters went there, then almost by definition, it was in the flood plain.

    What's the alternative, to suppose water flows up hill? It doesn't. From the point of view of inattentive folks, the water may reach unexpectedly high elevations when it floods. But I doubt any hydrologists were surprised.

    If you aren't on a conspicuous elevation, take a look at what's under your feet. If you aren't in a glaciated area, and you find unconsolidated alluvium, with admixtures of sand, gravel, and silt, you are almost certainly in a flood plain. Flowing water was there once, and it is quite likely coming back. The only question is how long you have to wait.

  • bevis the lumberjack||

    "Flood plains north of the Gulf Coast are extremely expansive, bevis."

    You don't have to tell me that. My family moved to Houston when I was in high school - Nixon was still President. My parents have lived in Houston continuously since then. I have not, but when I bought my current house here I made sure to check a topo map and compare my elevation to the highest level the water around here reached during Allison and insure that I was well above that. On the coastal plain, "well above" means something less than 10 feet, but as you say it's a big bowl. Doing so saved my ass during Harvey, as I was about 4 vertical feet from being flooded.

    "If the flood waters went there, then almost by definition, it was in the flood plain."

    Clearly. I've been careful to refer to the "identified" flood plain. Nobody - seriously absolutely nobody - foresaw an event like Harvey.

    Let me be clear, just in case people are misinterpreting what I'm saying. I'm not taking a position as to the merits of the lawsuit. It hinges on nuanced language in the law, and as an engineer I'm nowhere near qualified to comment on its merits. I'm just posting to clarify events for people that don't live around here to help people understand the situation.

  • Stephen Lathrop||

    When you mention the "identified flood plain," you raise an interesting point. In every case I have been aware of, that has not been an engineering concept so much as a political one. The engineering honesty of the defined flood areas seem always limited to an extent small enough to avoid encompassing objectors sufficiently numerous (or wealthy) to constitute an influential voting bloc.

    Mother nature pays no attention to politics. The extent of any given flood is predictable to a surprising degree. The volume of the biggest flood to be expected in a predicted time interval is a surprise nature holds in reserve. Note that the two big federal reservoirs did not even reach capacity during Harvey. But they nevertheless flooded neighborhoods that had been built within the reservoirs' predicted maximum footprints, which developers, regulators, and purchasers disregarded.

    Despite your re-assertion with regard to surprise, I still doubt any hydrologists were startled. My expectation is that the best of them have already read the record, and can tell you how large the biggest flood recorded in the geology was, and that it was notably larger than Harvey. That is just guessing, of course.

  • tkamenick||

    "Properties that flooded were not in any recognized floodplain."

    Then flood insurance should have been very cheap, no?

  • Drewski||

    If Somin read the comments, he would discover that a typo reversed the meaning of a sentence in this essay: "I will not cover them here, as they are significant to the broader constitutional questions at stake."

    Unfortunately, as far as I can tell, he prefers to leave such mistakes in place. I suppose it must be liberating to write without ever condescending to look at responses from his readers.

  • Stephen Lathrop||

    I hope Somin can explain why the appropriate response to this—if it is upheld—will not be to breach every levee, and tell the formerly protected populace they are on their own. Time to let the natural flood plains go back to doing the job of spreading flood waters and lowering flood crests. Too bad for the folks who thought it was public policy to protect their real estate investments, but now it's time to turn responsibility for acts of God back over to God.

    Or does Somin, alternatively, believe that now the levees have been built, the public at large is permanently on the hook for whatever happens behind them? Indeed, why not get rid of flood insurance, and just send all flood damage bills to the public fisc. This is madness.

  • apedad||

    Of course it's a Takens and the govt(s) should pay.

    They deliberately made decisions they felt would minimize destruction and potential deflect damage.

    Fine - but they did not neutralize the destruction and damage- they merely moved the destruction and damage to a different area.

  • James Pollock||

    Let's move east a bit and consider another case.

    In advance of Florence, the NC authorities closed a number of freeways, effectively limiting access to properties in the coastal counties. Is that a taking?
    Does it matter than many of the roads they closed were damaged, or severely underwater, at the time?

    Now let's move west. Back in the 1980's, the government closed several areas surrounding Mt. St. Helens, on the flimsy justification that bits of Mt. St. Helens were presently located in the stratosphere. Government taking?

  • apedad||

    No and no. The govts in those cases didn't take any property nor did their actions cause the destruction of any property.

    Did they temporarily close access to property because of an emergency - Yes.

    But that happens all time (e.g. close a street due to a house fire so neighbors can't get to their [unaffected] homes, etc.).

  • James Pollock||

    The first eruption of Mt. St. Helens was 38 years ago, and the federal government is still occupying some of the territory, and you don't consider this a "taking"? How long does the street have to be closed to make a "taking"?

  • Stephen Lathrop||

    Apedad, you can build a flood control reservoir of any capacity the topography and budget allow. But that capacity sets the limit on how much flood mitigation can be delivered. More water than can be held in the reservoir is going to become part of the flood, every time. Nobody can stop it. It isn't government action when that happens.

  • Stephen Lathrop||

    I doubt even the current Supreme Court is ideological enough to endorse Somin-style arguments with regard to flood control and takings. If I am mistaken, and the Court is that ideological, I suggest a resulting backlash on behalf of practicality and the real world will in short order deliver an ideology-reducing corrective to the Court.

  • Stephen Lathrop||

    For a terrific serving of backstory, touching on issues behind Somin's advocacy, google:

    Everyone Knew Houston's Reservoirs Would Flood — Except for the People Who Bought Homes Inside Them

    A summary remark, from a lawyer involved: "This is not dumb, bad planning. This is very well-thought-out, bad planning."

  • EscherEnigma||

    Ignoring the legal side of things, I had another thought...

    Boiled down, the problem is thus.
    We have two groups of property, Group A (high risk) and Group B (low risk).
    Group A is insured by Company X, and Company X will pay-out if Group A is destroyed by the flood.
    Group B, being low risk, is not insured by Company X, and as such will pay out themselves if Group B is destroyed by the flood.

    Now enters Actor G. If Actor G does nothing, then Group A is destroyed and Group B is not, and Company X pays out.
    If Actor G takes action, then Group B is destroyed but Group A is not, and Actor G pays out.

    As is evident, Actor G is incentivized to do nothing, regardless of the comparative value of Group A and Group B, as they are only responsible if they do something.

    The solution is simple: if Actor G and Company X are the same entity, then since it is paying out regardless of whether it takes action, it is incentivized to minimize the overall damage so that it pays out the least.

    In essence, this would mean moving many functions of emergency actions from government to the new unified insurance/river authority.

    This would, of course, create a problem of regional monopolies and such, and I'm sure there are other problems, but I think it would solve the issue of perverse incentives in emergency actions.

  • ReaderY||

    The constitutional arguments in favor of an emergency exception run more or less on the lines of the compelling interest standard.

    The public policy arguments are more or less analogous to Good Samaritan laws. If you can completely escape liability by doing nothing, but doing anything to help incurs liability, why would anyone want to help? If one thinks of the law as a set of incentives to encourage desired behavior and discourage undesired behavior, consequences matter.

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