CPR Archive for Christine Klein

Missouri River Floodplain Owners Seeking a “Double-Take” from the Taxpayers

by Christine Klein | April 21, 2014

Landowners flooded by the Missouri River in 2011 have sued the Corps of Engineers for a Fifth Amendment “taking” under the U.S. Constitution.  Their attorneys hope to rake in over $250 million in claims for their clients and at least $1 million in expenses and fees for themselves.  They’re likely to be disappointed.

Lawsuits seeking recovery of flood damages from the federal government almost always fail.  First, the United States is immune from suit for negligent construction or handling of flood control structures under the sovereign immunity shield of the 1928 Flood Control Act, as plaintiffs whose lives were destroyed when levees failed during Hurricane Katrina quickly discovered.  My co-author Christine Klein and I have called for a repeal of this provision in our article and book on Unnatural Disasters, but it hasn’t happened.

In hopes of avoiding the immunity problem, the Missouri River plaintiffs have brought a claim under the Fifth Amendment, which is not barred by the Flood Control Act.  However, this claim is just as unlikely to stick, for good reason.  As we document in our previous work, courts find that floodplain management constitutes a regulatory taking in only the rarest of cases, whether the impact to private property occurs through land use restrictions on construction or through flood control structures like dams and levees.  This is because the impact is neither a “permanent physical occupation” of the property by ...

The Lesson of Tarrant Regional Water District v. Herrmann: Water Conservation, not Water Commerce

by Christine Klein | June 19, 2013
It’s been more than 30 years since the U.S. Supreme Court declared that water is an article of commerce and that Nebraska’s attempts to prevent the export of “its” groundwater to neighboring Colorado violated the dormant Commerce Clause.[1] The high Court did not return directly to the issue until last week’s ruling in Tarrant Regional Water District v. Herrmann.[2] [3] This time, a unanimous Court ruled againt the would-be exporter--Texas--and its effort to diver a portion of the Kiamichi River ...

Reversing the Environmental Deficit

by Christine Klein | October 21, 2009
As the recession grinds on, financial news continues to grab front-page headlines. The national deficit is a central flashpoint for controversy, triggering debate on the appropriate balance between spending today and increasing our children’s growing mountain of debt. In the midst of this battle, it is easy to overlook another looming problem: the growth of the environmental deficit. Overall, we are spending down the planet’s “natural capital” at unsustainable rates. As the nation’s most thoughtful minds address our economic woes, ...

Coveting Their Neighbor's Water: the Importance of Hood v. City of Memphis

by Christine Klein | September 24, 2009
The interstate water wars have gone underground. For more than a century, the U.S. Supreme Court has been the arbiter of last resort to settle fights between states over the right to use surface streams that cross state lines. But now, the high Court may be asked to settle a long-standing feud between Mississippi and Tennessee over a vast underground formation—the Memphis Sand aquifer, which underlies about 10,000 square miles of Arkansas, Tennessee, Mississippi, and Kentucky. The stakes are high, ...

Also from Christine Klein

Christine A. Klein is the Chesterfield Smith Professor and Director, LL.M. Program in Environmental & Land Use Law at the University of Florida, Levin College of Law, Gainesville.

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