Determining Climate Responsibility: Government Liability for Hurricane Katrina?

• Date: 01 January 2019

1-2019 NEWS & ANALYSIS 49 ELR 10005

DIALOGUE

Determining Climate

Responsibility: Government

Liability for Hurricane Katrina?

Summary

In St. Bernard Parish Government v. United States,

Louisiana property owners argued that the U.S. gov-

ernment was liable under takings law for ood dam-

age to their properties caused by Hurricane Katrina

and other hurricanes. e U.S. Court of Appeals for

the Federal Circuit disagreed, however, noting that

the government cannot be liable on a takings theory

for inaction, and that the government action was not

shown to have been the cause of the ooding. On

September 6, 2018, the Environmental Law Institute

hosted an expert panel to explore this ruling and its

potential implications for future litigation in a world

of changing climate, extreme weather, and uncertain

liability. Below, we present a transcript of the dis-

cussion, which has been edited for style, clarity, and

space considerations.

Teresa Chan (moderator) is a former Senior Attorney at

the Environmental Law Institute.

Michael Burger is Executive Director of the Sabin Center

for Climate Change Law at Columbia Law School.

Vincent Colatriano is a Partner at Cooper & Kirk, PLLC.

John Echeverria is a Professor of Law at the Vermont

Law School.

Teresa Chan: ank you for joining us as we discuss gov-

ernment liability for Hurricane Katrina. We are going to

focus on the St. Bernard Par ish Government v. United States

case.1 To provide some background, this case was started

in 2005 in the Court of Federal Cla ims. As the appellate

court noted, the plaintis a re Louisiana property owners

who argued that the federa l government was liable for ood

damage to their properties caused by Hurricane Katrina

and other hurricanes as a ta king. e lower court agreed

1. St. Bernard Parish Government v. United States, 887 F.3d 1354, No. 2016-

2301, 2016-2373, 48 ELR 20065 (Fed. Cir. Apr. 20, 2018).

with the plaintis, but on appeal earlier this year, the Fed-

eral Circuit Court of Appeals reversed that decision.

We want to focus on this case for a few dierent reasons.

One, it certainly adds to the body of cases on takings law

and, as our panelists w ill dig into the details, perhaps clari-

es some issues on that front. Also, we want to focus on

this case bec ause of its potentia l implications for future liti-

gation of this type. A s we start to see more extreme weather

and more disasters, we expect th at we might see an increase

in these sorts of cases.

To help me navigate through this ca se as well as

the potential implications, I have a wonderful panel of

experts. We have Vincent Colatriano, who has represented

the plaintis in this case, and we have John Echeverria, a

professor at Vermont Law School, and Michael Burger,

who is at the Sabin Center for Climate Change Law. With

that, I’m going to turn things over to our rst speaker,

Vincent, who is a partner at Cooper & Kirk. As I men-

tioned, he’s also counsel for the plaintis in this case and

he’s going to tell us about the background for this case as

well as the decision.

Vincent Colatriano: I’m delighted to have the opportunity

to talk about this case and to contribute to this discussion.

I can’t and won’t claim to be a completely neutral observer

or analyst because, a s Teresa mentioned, I’ve been litigating

this case. I’ve been part of a team t hat has litigated the case

for more than a decade along with some other attorneys at

my law rm, including Chuck Cooper, as well as a great

team of lawyers who are based in both Washington, D.C.,

and Louisiana.

Because of that and because it is an ongoing case, I

believe my best role here is not to provide extensive com-

mentary on the case, but rather to provide some back-

ground about the case and about the decisions. I think t hat

I could provide a useful summary that will contribute to

the wider discussion that the other panelists will be focus-

ing on.

Let me begin by saying that f rom my adm ittedly narrow

perspective, I think t he title of this program is probably not

entirely accurate. Our case is not, strictly speaking, about

the government’s liability for Hurricane Katrina. We aren’t

seeking to hold the government responsible for the storm

in some general sense or even for most of the ooding asso-

ciated with the storm.

Editor’s Note: Mr. Colatriano is one of the attorneys representing

the property owner plaintis in the St. Bernard Parish

Government litigation.

Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.