https://www.bloomberg.com/news/featu...-everyone-else
Rich Texans want to sue the federal government because their properties were developed on a dam's flood plain, and this flood plain happened to be... flooded during the hurricane.
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This situation, though, has two key differences. In New Orleans, economically disadvantaged communities, some of them historically black, bore the brunt of the loss, with hundreds, perhaps thousands, of deaths. The victims in West Houston include white, wealthy, Republican-voting energy executives.
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The West Houston cases are unlike the Katrina cases in another way, too: Rather than make a legal argument about official neglect, they speak to what happened when the federal government intentionally flooded one of the richest areas of a city to save everyone else.
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“Hell yeah, I’m pissed,” he spits. He says he’s still deciding whether to sue. “This was not an act of God, this was an act of man. They pushed us onto a grenade to save the rest of the city.” He crushes a beer can in one hand and tosses it aside, then picks up a sledgehammer and brings it down, hard, on a ruined cabinet.
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Buzbee waves off such caution. “If you have your case on file and have litigated your case, you will always have better standing than someone who is sitting on the sidelines,” he says.
His approach to the West Houston suits is based on a fascinating legal argument, one that taps at a core Texan belief: The government should leave you the hell alone and pay you back if it doesn’t. The takings clause of the U.S. Constitution’s Fifth Amendment forbids the federal government from seizing citizens’ property without paying for it: “[N]or shall private property be taken for public use without just compensation.” Attendant case law holds that when a government “takes” property for the public good without going through eminent domain proceedings, the owner can claim that an “inverse condemnation” has taken place, arguing that property was unfairly taken, damaged, or destroyed, and that payment is due.
Until 2012 the government successfully argued that it wasn’t legally responsible for decisions made in response to temporary flooding. That year the Supreme Court laid out a new multifactor test that could establish government liability in such cases. The majority opinion, written by Justice Ruth Bader Ginsburg, held, for example, that the government should compensate a property owner for a taking if it has interfered with a “reasonable, investment-backed expectation.” That is, if it was reasonable to expect that a home you invested in wouldn’t flood, but it does, and a court finds the government responsible, then compensation could be due.
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In some cities, developers are prohibited from building in these areas, but in Houston there are no such restrictions. Many homeowners west of the Barker dam claim they didn’t know they were in a flood pool, that they hadn’t spotted the fine print on the bottom of some of their subdivision maps. (“Who looks at a subdivision map?” one resident asks.)
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Blais isn’t sure that even the 500-year flood plain homeowners will be able to make their case in court. “If you are close to the coast in hurricane country, and you build a house downstream from a reservoir and near a bayou, and everything around you is called ‘bayou’-something, what are your reasonable expectations of being flooded?” she asks. “You probably should have thought of that.”
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There are also concerns that, if the cases succeed, they could create a daunting precedent for the government. Ginsburg’s 2012 opinion tried to assuage fears that a broader takings standard would lead to a “deluge” of claims, but Echeverria and Meltz write that this could be exactly what happens. The takings clause could, they say, become “a kind of social insurance program for risk associated with climate change.” The notion of “historic flooding” inscribed in the 500-year flood plain standard won’t mean much if climate change scrambles that math. What’s more, they write, “successful takings litigation may actually impede initiative to take steps to avoid the worst effects of climate change.” Why build a dam, after all, if operating it could cost you billions of dollars in lawsuit payouts?
It's unfortunate they lost homes and possessions (though they have security), and I'd rather blame unscrupulous developers over buyers, but I don't see how they can sue for beyond the normal federal disaster relief - and honestly these people have relatively little need for federal relief. I hope this fails in court.
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“I’m 100 percent certain Robert died because of the dam releases,” Kyle says. “It was because of their irresponsibility that they didn’t force people to get out before they released the water. I think they should have busted doors down and said, ‘The reservoir’s going, you gotta get out now.’ ”
I am in full agreement that pre-emptive mandatory and compelled evacuation in such circumstances is appropriate. Unfortunately, I'm unsure that many Texans agree.