Floods, litigation…and social change?

Wednesday and Thursday, the American Meteorological Society hosted a policy workshop and held a Capitol Hill briefing, focused on the 2017 hurricane season here in the United States and the Caribbean[1], and on the need and opportunity to re-set U.S. hazards policies. We are developing the Workshop Report, which we hope to make available online sometime soon.

Hurricane Harvey’s flooding received a lot of attention at the workshop. Unsurprisingly, with billions of dollars in losses and relief changing hands in the world’s most litigious society, Houstonians are lawyering up. Yesterday Bloomberg News tells us why, in a story entitled The U.S. Flooded One of Houston’s Richest Neighborhoods to Save Everyone Else. Some excerpts (the fuller article merits a careful read):

decisions made by [the U.S. Court of Federal Claims] could, as after Katrina, set important precedents for the federal government’s liability in the wake of disasters.

This situation, though, has two key differences. In New Orleans, economically disadvantaged communities, some of them historically black, bore the brunt of the loss, with hundreds, perhaps thousands, of deaths. The victims in West Houston include white, wealthy, Republican-voting energy executives. They live in neighborhoods where the main employers are BP Plc and Royal Dutch Shell Plc, the median income is triple that of the rest of the city, and second homes and weekend-spin sports cars aren’t unusual. Their debris piles include wine fridges, coffee table books about Renoir, and Chinese bar carts from overseas assignments.

The West Houston cases are unlike the Katrina cases in another way, too: Rather than make a legal argument about official neglect, they speak to what happened when the federal government intentionally flooded one of the richest areas of a city to save everyone else [emphasis added]

…[Sunday, August 27th] , the Harris County Flood Control District held a press conference at which it announced that the U.S. Army Corps of Engineers would begin controlled releases at the Addicks and Barker dams surrounding West Houston. The two massive reservoirs retain water that gathers in the prairie west of the city, forming Buffalo Bayou, which runs down the Energy Corridor, through downtown, out the Houston Ship Channel and, finally, into the Gulf of Mexico. The water behind the dams was rising more than 6 inches an hour, and the flood control district said residents should be prepared to leave the next morning.

But the water level rose even faster than expected that night—Harvey brought 51 inches of rain, all told. The Army Corps won’t confirm exactly when the releases began, but legal complaints and residents say the floodgates opened at about 1 a.m., sending a rush of water toward Buffalo Bayou while many people were sleeping. Just after 1:30 a.m. the Corps posted a press notice on social media stating that the dam releases would amount to 8,000 cubic feet of water per second. “If we don’t begin releasing now, the volume of uncontrolled water around the dams will be higher,” Colonel Lars Zetterstrom, the Corps’ Galveston district commander, was quoted as saying. “It’s going to be better to release the water through the gates directly into Buffalo Bayou.” The danger was that the water would flow uncontrolled into homes located upstream from the reservoir, crest the reservoir walls downstream, or crack a section of the Barker dam that was under repair. Had either dam failed, the Houston Chronicle later wrote, West Houston would have been left with “a week of corpses by the mile.”

Buffalo Bayou quickly overflowed, washing over the surrounding area. The several dozen West Houstonians I spoke with portray the reservoir water as mixed in with bayou funk, distinct from the rains. “That rainwater ran clear,” one says. “This water stank.” Another resident, who lives a block from Buffalo Bayou, describes a muddy wave blasting open his back French doors.

 By Tuesday, the water was being released at a rate of 13,000 cubic feet per second. With their measuring equipment inundated, people assessed the water filling their homes against their bodies: belt, then chest, then neck. Elderly people reported waking up confused, believing they were in waterbeds. For most, evacuation became the only option. Medians turned into boat launches. Dads hopped in bass-fishing boats or on air mattresses to lead rescues of people, pets, documents. Some residents who’d left in a panic returned, at their peril, to recover what they could. One man died after being electrocuted as he tried to retrieve a cat…

It says something about the fast pace of 21st-century innovation that Katrina, Harvey, and the twelve years in between show some signs of social change, but let’s go back a bit further, 128 years, to the Johnstown flood of 1889. David McCullough’s eponymous book brings the event to life, but the Wikipedia entry captures more than we can incorporate here.

Again, some excerpts:

The Johnstown Flood (locally, the Great Flood of 1889) occurred on May 31, 1889, after the catastrophic failure of the South Fork Dam on the Little Conemaugh River 14 miles upstream of the town of Johnstown, Pennsylvania. The dam broke after several days of extremely heavy rainfall, releasing 14.55 million cubic meters of water. With a volumetric flow rate that temporarily equaled the average flow rate of the Mississippi River, 2,209 people, according to one account, lost their lives, and the flood accounted for US$17 million of damage (about $453 million in 2016 dollars).

 The American Red Cross, led by Clara Barton and with 50 volunteers, undertook a major disaster relief effort. Support for victims came from all over the United States and 18 foreign countries. After the flood, survivors suffered a series of legal defeats in their attempts to recover damages from the dam’s owners. Public indignation at that failure prompted the development in American law changing a fault-based regime to strict liability…

 …In the years following the disaster, some people blamed the members of the South Fork Fishing and Hunting Club for their modifications to the dam and failure to maintain it properly. The club had bought and redesigned the dam to turn the area into a vacation retreat in the mountains. They were accused of failing to maintain the dam properly, so that it was unable to contain the additional water of the unusually heavy rainfall…

 …The club was successfully defended by the firm of Knox and Reed (now Reed Smith LLP), whose partners Philander Knox and James Hay Reed were both Club members. The Club was never held legally responsible for the disaster. The court held the dam break to have been an Act of God, and granted the survivors no legal compensation.

Two quite different cases: today’s, featuring deliberate decisions and actions of the federal government, intended to save the lives of the many at the expense of more-well-to-do – and yesterday’s, featuring alleged negligence of the wealthy, resulting in death and suffering to more ordinary folk. Yesterday’s, resolved in favor of those wealthy – and today’s, with the outcomes yet to be decided. Only after the Harvey cases have been adjudicated and resolved will it be possible to tell what’s stayed the same in our American social contract over the period, and what has changed.

We will all watch and learn.

Meanwhile, we can see four constants. (1) Flooding itself – reflecting nature and human decisions. (2) An appetite for litigation. (3) Overwhelming, gut-wrenching pain, loss, and personal upheaval for those who experience disaster. (4) Repetitive loss, resulting from our individual and societal difficulty in learning from such experience.

Not much prospect for changing the first two! The latter two were the focus of the AMS workshop – exploring policy options that might move the needle towards greater resiliency.

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[1]Shaping up to be named the HIM event, after hurricanes Harvey, Irma and Maria.

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