Determining Climate Responsibility: Government Liability for Hurricane Katrina?

Date01 January 2019
1-2019 NEWS & ANALYSIS 49 ELR 10005
Determining Climate
Responsibility: Government
Liability for Hurricane Katrina?
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®,, 1-800-433-5120.

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