When (and Why) the Levee Breaks: a Suggested Causation Framework for Takings Claims that Arise from Government-Induced Flooding

In 1968, the United States Army Corps of Engineers finished constructing the seventy-six-mile Mississippi River-Gulf Outlet (MR-GO) navigational channel. Congress authorized the Army Corps of Engineers to begin construction to create a shipping route between New Orleans and the Gulf of Mexico. However, the MRGO also caused significant erosion and other environmental detriments that greatly increased the risk of flooding around its vicinity. 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. Hurricane Katrina eventually showcased the MR-GO’s defects in violent fashion. The MR-GO severely worsened Hurricane Katrina’s effects and Louisiana landowners resultingly incurred catastrophic flood damages. 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. Unfortunately, an array of other powerful hurricanes and tropical storms in recent years have also brought devastation and repeatedly sounded the alarm on an uncomfortable scientific truth: sea levels are rising and causing substantial flooding. 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. Indeed, some projects originally built to prevent flooding have instead intensified it. 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. With this in mind, some litigants have instead alleged that government- induced flooding amounts to a taking compensable under the Fifth Amendment. Variations of this recovery method’s theoretical underpinnings have received much scholastic attention in recent years. 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. Instead, courts must apply fact-intensive inquiries. Arkansas Game’s proscription against categorical dismissals means that litigants will likely continue to raise takings claims that arise from government-induced flooding. 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. Given that one project’s beneficial aspects might offset another project’s detrimental effects, 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.” To this end, this Note suggests that courts weigh (1) additional “risk-increasing and risk-decreasing government actions,” (2) their relation to the primary infrastructure project that allegedly induced flooding, 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 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 and the Federal Circuit. 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