WHEN (AND WHY) THE LEVEE BREAKS: A SUGGESTED CAUSATION FRAMEWORK FOR TAKINGS CLAIMS THAT ARISE FROM GOVERNMENT-INDUCED FLOODING.

• Author: Wallace, Charles D.

TABLE OF CONTENTS INTRODUCTION 604 I. How WE GOT HERE 607 A. Government Tort Immunity 607 B. The Takings Clause as an Alternate Source of Liability 609 II. SUPREME COURT PRECEDENT 612 A. The Supreme Law of the Land: Temporary Government-Induced 612 Flooding May Constitute a Taking B. Litigants Will Continue to Bring Similar Claims 614 III. INCONSISTENT CAUSATION FRAMEWORKS ON DISPLAY: 614 THE ST. BERNARD PARISH LITIGATION A. Factual Background 615 B. The Court of Federal Claims Decision 617 C. The Federal Circuit Decision 619 D. The Current Law After St. Bernard Parish and Arkansas Game 620 IV. A SUGGESTED CAUSATION FRAMEWORK 622 A. Key Policy Implication 622 B. Approaches Taken in Prior Federal Court Decisions 625 C. A Suggested Causation Framework 628 V. LIKELY COUNTERARGUMENTS 630 A. Taking or Tort: Are These Lawsuits Theoretically Sound? 630 B. Too Much Deference to the Federal Government? 632 CONCLUSION 633 INTRODUCTION

In 1968, the United States Army Corps of Engineers finished constructing the seventy-six-mile Mississippi River-Gulf Outlet (MR-GO) navigational channel. (1) Congress authorized the Army Corps of Engineers to begin construction to create a shipping route between New Orleans and the Gulf of Mexico. (2) However, the MR-GO also caused significant erosion and other environmental detriments that greatly increased the risk of flooding around its vicinity. (3) The Army Corps of Engineers learned about many of these detriments and risks through numerous studies it conducted between 1998 and 2005, but never fully addressed them. (4)

Hurricane Katrina eventually showcased the MR-GO's defects in violent fashion. The MR-GO severely worsened Hurricane Katrina's effects (5) and Louisiana landowners resultingly incurred catastrophic flood damages. (6) To make matters worse, many injured landowners who sought compensation from the federal government for its construction of and failure to maintain the MR-GO instead experienced protracted and ultimately unsuccessful litigation. (7)

Unfortunately, an array of other powerful hurricanes and tropical storms in recent years have also brought devastation (8) and repeatedly sounded the alarm on an uncomfortable scientific truth (9): sea levels are rising (10) and causing substantial flooding. (11) Though the federal government has attempted lofty infrastructure projects to address rising sea levels throughout the years, many of these projects have suffered from mismanagement and a dearth of basic maintenance. (12) Indeed, some projects originally built to prevent flooding have instead intensified it. (13) When an infrastructure project actually causes more severe flood damages than would have occurred without its construction, how might an affected property owner win compensation from the federal government?

A property owner who sues the federal government in tort will almost certainly fail, considering that one cannot sue the federal government unless the federal government consents to being sued. (14) With this in mind, some litigants have instead alleged that government-induced flooding amounts to a taking compensable under the Fifth Amendment. (15) Variations of this recovery method's theoretical underpinnings have received much scholastic attention in recent years. (16) Nonetheless, in Arkansas Game & Fish Commission v. United States, the Supreme Court asserted that due to "the nearly infinite variety of ways in which government actions or regulations can affect property interests," lower courts may not categorically dismiss such claims via bright-line rules. (17) Instead, courts must apply fact-intensive inquiries. (18)

Arkansas Game's proscription against categorical dismissals means that litigants will likely continue to raise takings claims that arise from government-induced flooding. (19) One essential element of these claims is causation. Causation can be especially difficult to calculate because the federal government has already completed a myriad of infrastructure developments and continues to undertake ambitious projects. (20) Given that one project's beneficial aspects might offset another project's detrimental effects, (21) how can a court best determine whether the federal government sufficiently caused a litigant's property damages?

This Note contends that federal courts adjudicating takings claims that arise from government-induced flooding should employ a fact-specific causation inquiry that weighs certain factors to decide "whether the totality of the government's actions caused the injury." (22) To this end, this Note suggests that courts weigh (1) additional "risk-increasing and risk-decreasing government actions," (23) (2) their relation to the primary infrastructure project that allegedly induced flooding, (24) and (3) the time that has elapsed between each additional project's construction.

To help explain why litigants bring such takings claims in the first place, Part I briefly reviews governmental tort immunity and Takings Clause jurisprudence. Part II reviews the Supreme Court's 2012 Arkansas Game (25) decision and the arguments it rejected. Part II concludes that litigants will continue to bring forth such claims due to the Supreme Court's refusal to draw bright-line rules. Part III reviews the St. Bernard Parish Government v. United States litigation and the divergent causation approaches taken by the Court of Federal Claims (26) and the Federal Circuit. (27) Part IV first analyzes important policy implications that should underlie a causation calculus. Next, it looks to prior federal court decisions for guidance. Part IV then suggests a causation framework that gives courts flexibility to avoid unjust results and incentivizes the federal government to proactively combat global warming's malicious effects. Part V addresses possible counterarguments and looks to some recent scholarship concerning the theoretical viability of similar recovery theories.

1. How WE GOT HERE

   Before diving into their policy implications, it is important to understand why plaintiffs bring takings claims regarding government-induced floods in the first place. This Part briefly reviews the federal government's immunity from tort liability before reviewing Takings Clause jurisprudence, wherein the federal government lacks immunity.

   1. Government Tort Immunity

      The federal government enjoys substantial immunity from tort claims, especially those that originate "from activities and events at federal flood control projects." (28) Although a detailed inquiry into the full scope of and the mechanics controlling the federal government's tort immunity is beyond this Note's scope, (29) a basic overview provides helpful context to explain the increase in takings claims which various judges and other legal scholars have argued look a lot like tort claims. (30)

      First, the sovereign immunity doctrine holds that the federal government is immune from damages liability that it does not consent to. (31) Although the Federal Tort Claims Act (FTCA) (32) opens the federal government to tort liability in many instances, its "discretionary function exception" grants the federal government significant protections. (33) Indeed, the federal government is immune to any claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." (34) A governmental action is "discretionary," and thus not subject to suit, when it (1) "involves an element of judgment" and (2) is "based on considerations of public policy." (35) Courts generally construe the discretionary function exception broadly. (36)

      The Federal Flood Control Act (FCA) also provides substantial tort immunity to the federal government. Per the FCA, "[n]o liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place." (37) Perhaps unsurprisingly, federal courts have generally concluded that the FCA holds the federal government immune from negligence suits seeking damages related to governmental flood control efforts. (38)

      Though governmental tort immunity in the context of flooding damages is not absolute, (39) as stated above, litigants rarely succeed on tort claims raised against the federal government for its role in damages arising from flooding. In In re Katrina Canal Breaches Litigation, for example, landowners (40) raised several tort claims for damages resulting from the federal government's allegedly negligent failure to maintain the MR-GO canal system. (41) However, the court held the federal government immune from each claim under either the FCA (42) or, for claims not immune under the FCA, under the discretionary function exception to the FTCA. (43) Indeed, in light of both the FCA and the FTCA, plaintiffs seldomly avoid dismissal of tort claims raised against the federal government for injuries sustained from flooding related to federal activities. (44)

   2. The Takings Clause as an Alternate Source of Liability

      Although plaintiffs are generally barred from asserting tort claims against the federal government for its alleged causal role in flood damages, they have more leeway in raising claims via the Fifth Amendment's Takings Clause.

      The Tucker Act (45) grants jurisdiction to the United States Court of Federal Claims over certain claims brought against the United States, including claims "founded ... upon the Constitution" and claims "for liquidated or unliquidated damages in cases not sounding in tort." (46) Courts presume that the federal government has consented to suit on claims that fall within the Tucker Act's scope. (47)

      Fifth Amendment takings claims are included within the Tucker Act's ambit. (48) Per the Takings Clause, "nor shall private property be taken for public use, without just compensation." (49) The Takings Clause is based upon the idea that "[w]hen the...