The Flood of Takings Cases after Hurricane Harvey

by John Echeverria | October 23, 2017

Robert Meltz, Special Counsel at Defenders of Wildlife, co-authored this post.

On August 27, as Hurricane Harvey blew through the Houston area, the U.S. Army Corps of Engineers found itself between the proverbial rock and hard place. Since the 1940s, it had operated a flood control project to control the risk of flood damage to downtown Houston and the Houston Ship Channel. It had accomplished this by carefully controlling the release of flood waters from the project's dams. Now, however, the Corps confronted Hurricane Harvey, a megastorm generating massive, unprecedented volumes of flood water. 

The Corps faced the choice of either limiting water releases from the project to protect downstream properties at the cost of flooding upstream properties, or increasing project releases to protect upstream properties at the cost of flooding downstream properties. Not surprisingly, the Corps' decision on August 27 and on the following days, to release up to 13,000 cubic feet per second from the project dams, which arguably contributed to the flooding of both downstream and upstream properties, left everyone unhappy. 

What is surprising is that property owners upstream and downstream from the project have now filed as least 61 – yes, 61! – separate lawsuits in the U.S. Court of Federal Claims (CFC) asserting a "taking" of their private property under the Takings Clause of the Fifth Amendment of the U.S. Constitution. All told, the complaints seek "just compensation" from the U.S. government to the tune of ...

Dear Congress: EPA's TSCA Implementation Has Gone Awry

by Katie Tracy | October 19, 2017
Individuals across the United States encounter hundreds of chemical substances every day and often simultaneously – in common household and hygiene products, in our food and drinking water, and in our air. Some of these chemicals present serious risks to our health and the environment and a heightened risk of harm for children, pregnant women, the elderly, and individuals with compromised immune systems. To this day, we are largely unprotected from all manner of chemical exposures, including chemicals widely known ...

The Pull of Energy Markets -- and Legal Challenges -- Will Blunt Plans to Roll Back EPA Carbon Rules

by Hannah Wiseman | October 17, 2017
Professor Hari Osofsky of Pennsylvania State University co-authored this article with Center for Progressive Reform Member Scholar and Florida State University College of Law Professor Hannah Wiseman. It originally appeared in The Conversation on October 13, 2017. On Oct. 10, EPA Administrator Scott Pruitt formally announced a repeal of the Clean Power Plan, regulation intended to curb greenhouse gas emissions from existing coal- and natural gas-fired power plants.  This follows a directive only a week earlier by Energy Secretary Rick Perry for the ...

CPR's Latest Op-Eds Take on the Assault on Our Safeguards

by Matthew Freeman | October 16, 2017
CPR's Member Scholars and staff have continued to appear in the nation's op-ed pages to expose the ongoing assault on our safeguards by President Trump and Congress. Among recent examples: Dan Farber's July 5 article in The Hill highlighted the many flaws in legislation introduced by Sens. Rob Portman (R-OH) and Heidi Heitkamp (D-ND) designed to encumber the development of regulatory safeguards. In "Tangling life-saving regulations in red tape," Farber writes, "[T]he bill would impose needlessly complex procedures that will ...

Foreseeable Yet Lamentable: Pruitt's Attack on Carbon Restrictions

by Daniel Farber | October 10, 2017
An earlier version of this post appeared on Legal Planet. Few things were more foreseeable than the Trump administration's repeal of the Clean Power Plan (CPP). The administration was never going to leave in place a regulation that disfavored coal and promoted the use of renewable energy in electricity generation. The only real questions were when and how. Today, the administration is taking the first step with the release of a proposed rule repealing the CPP. EPA is relying wholly ...

Under the Radar: What States Are Doing about Energy and Climate

by Daniel Farber | October 04, 2017
What happens in Washington gets a lot of attention. You probably also follow what's going on in your own state. But it's very hard to know what's happening in states across the country. In an effort to get a better sense of that, I've explored state activity on climate change and energy in a series of posts. This wasn't a fifty-state survey, or even a statistically valid random sample. But it does indicate what's happening in a range of states, ...

Senate Briefing Highlights Need for Strong Federal Role in Protecting Endangered Species

by Alejandro Camacho | October 03, 2017
On September 28, I joined senators and Senate staff for a Capitol Hill briefing hosted by Sen. Tammy Duckworth. Our discussion focused on the report I co-authored with my colleagues at the Center for Land, Environment, and Natural Resources, entitled Conservation Limited: Assessing State Laws and Resources for Endangered Species Protection, which investigates states' capacity to protect and recover endangered species by looking at how these laws compare to the federal Endangered Species Act (ESA). It also looks at state and ...

Houston Chronicle Op-Ed: Burying Our Head in Sand on Climate Change No Longer an Option

by Victor Flatt | September 29, 2017
This op-ed originally ran in the Houston Chronicle. Every day during the Hurricane Harvey disaster, our hearts would sink as we kept hearing the word "unprecedented" again and again. Harvey wasn't supposed to strengthen so fast; it shouldn't have stalled where it did. Every day as we hoped the worst was over, Harvey would pummel us even harder. Everything was outside the norm, breaking all records. Over 50 inches of rain. Houston's "wettest month in recorded history." High river marks exceeded ...

Trump to America's Most Vulnerable Communities: You're on Your Own

by James Goodwin | September 28, 2017
UPDATE: President Trump is no longer scheduled to speak on deregulation on October 2, but the planned deregulatory "summit" with various cabinet-level agencies is still slated to occur. Government-sanctioned cruelty makes for shocking images, as the events of the past few weeks demonstrate. People in wheelchairs forcibly dragged from congressional hearing rooms for protesting legislative attempts to strip them of access to affordable health care. The uncertainty on the faces of Puerto Rican parents as they survey the damage to ...

At House Judiciary Hearing, CPR's Steinzor to Call for Repeal of Congressional Review Act

by James Goodwin | September 27, 2017
Tomorrow, CPR Member Scholar Rena Steinzor is scheduled to appear before the Subcommittee on Regulatory Reform, Commercial and Antitrust Law of the House Judiciary Committee to testify at a hearing focused on the Congressional Review Act (CRA). The CRA is a controversial law that has been aggressively used this past year by the majority in Congress and the Trump administration to repeal 14 regulatory safeguards that would have protected consumers, workers, and our environment. In her testimony, Steinzor makes the ...

CPR Scholars to EPA, Army Corps: Scrapping the Clean Water Rule is Unlawful, Unwise

by Dave Owen | September 26, 2017
On September 25, a group of Member Scholars from the Center for Progressive Reform (CPR) submitted comments on the Trump administration's proposed rollback of the "waters of the United States" rule (technically, the rollback rule has been issued by EPA and the U.S. Army Corps of Engineers, but its support within those agencies comes only from the Trump administration's political appointees). The proposed rule addresses the scope of federal jurisdiction under the Clean Water Act – which means, in non-legal terms, ...

Baltimore Sun Op-Ed: Preparing for Hurricanes Should Not Fall to Ratepayers

by Matt Shudtz | September 20, 2017
This op-ed originally ran in the Baltimore Sun. The full scope of the heartbreaking devastation wrought by hurricanes Harvey and Irma — the human, economic and environmental toll — may not be completely understood for years. As we do what we can to help the victims, it is also time to think about how we can prepare for the inevitable here in Baltimore. After all, Baltimore floods more than most other cities in the United States and gets little help ...

Senate to Hold Confirmation Hearing on Another Round of Industry-Friendly EPA Nominees

by Matt Shudtz | September 19, 2017
UPDATE: The Senate Committee on Environment and Public Works has rescheduled the confirmation hearing originally slated for Wednesday, September 20. The committee now plans to hold the hearing on Wednesday, October 4. Three influential EPA offices – the Offices of Air, Water, and Chemical Safety and Pollution Prevention – share a common attribute. Each is at the center of a defining battle over its future. What is the future of climate regulation at EPA? How will the agency define "waters of ...

No Job and No Paycheck After Harvey and Irma

by Katie Tracy | September 15, 2017
In the wake of Hurricanes Harvey and Irma, thousands of Texans and Floridians are out of work, some indefinitely. Without knowing when their employers might reopen for business (if at all) , many are uncertain how they're going to afford their next meal or purchase basic necessities, much less repair their damaged homes and property. At the same time, monthly bills are coming due. Vice News recently shared one Houston family’s gripping story of how Harvey has devastated them financially. ...

As Irma Hits Florida, Trump's Risk Is Different from His Neighbors'

by David Flores | September 09, 2017
As Hurricane Irma takes aim at the Florida coast, questions about property and community vulnerabilities abound, including for some of President Donald Trump's properties. A brief analysis by the Center for Progressive Reform (CPR) has found that while Trump's properties, including Mar-a-Lago, face significant risk of damage from the hurricane and from the ongoing impacts of climate change, surrounding neighborhoods and communities will have a much more difficult time rebuilding and recovering from the storm.  Three Trump developments in South ...

You Are No Theodore Roosevelt

by Evan Isaacson | September 05, 2017
Last month, Secretary of the Interior Ryan Zinke submitted his long-anticipated report to President Trump that recommends dismantling and looting some of America's treasured monuments and antiquities. (This was interesting timing, given that the president stood firmly behind the preservation of some other, far less-cherished monuments.) In anticipation of the report, Theodore Roosevelt IV, the 26th president's great-grandson, wrote a letter to the editor in the Houston Chronicle telling Zinke that his actions have failed to live up to the legacy ...

Trump Administration Policies Will Make Americans More Vulnerable to Toxic Floodwaters

by David Flores | August 30, 2017
As the country bears witness to the impacts of Hurricane Harvey, a storm unlike any other, the Trump administration's policy of rolling back worker, emergency response, and environmental safeguards will all but ensure that victims of future flooding events will be exposed to toxic contamination. Over just a 36-hour period, an estimated 9 trillion gallons of rainwater deluged Texas, affecting millions and displacing tens of thousands along the Gulf Coast and in Houston. As the rainfall and flooding wear on this week, emergency ...

As Texas Floods, President Trump Backpedals on Resiliency

by Alice Kaswan | August 28, 2017
With a sense of horror, the nation is watching waters rise in southeastern Texas as now-Tropical Storm Harvey spins across the Gulf Coast. While no individual storm can be attributed to climate change, scientists predict more intense storms, and the wisdom of preparing for future floods has never been clearer. And yet, less than two weeks ago, President Trump issued an executive order that rolled back a federal flood standard designed to anticipate intense flooding. Instead of investing in infrastructure ...

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