AUDIE CORNISH, HOST:
During Hurricane Harvey, many Houston residents found out the hard way that their homes and businesses were within the flood plains of reservoirs built by the U.S. Army Corps of Engineers. Some property owners blame the Corps for the damage to their buildings, and they want compensation. The trial plays out this week. Houston Public Media's Andrew Schneider has more on the legal strategy.
ANDREW SCHNEIDER, BYLINE: The Addicks and Barker dams have stood to the west of downtown Houston for more than 70 years. Most of the time, the land behind them looks like parks. That attracted development and new residents as the city expanded. The problem was that land was actually two dry reservoirs designed to flood in order to protect downtown Houston. During Harvey, the reservoirs filled to the brim and beyond. More than a thousand people had to flee their homes and businesses. Victor Flatt teaches environmental law at the University of Houston Law Center.
VICTOR FLATT: Since they are being damaged by the actions of the federal government, then the federal government has done something that has taken their property, subjecting it to liability for damages under the Fifth Amendment.
SCHNEIDER: The Fifth Amendment says the government must provide just compensation for taking private property. But the people living and working there say they were never told that the area was within the reservoirs.
FLATT: Typically, if the government builds a dam and it floods land behind it, just as TVA did when they were electrifying the South, they of course pay for the land that's taken by that flooding. However, it's very unusual for a dam to have not bought out all of the flood spill plain behind it, and that's what happened in this case.
SCHNEIDER: At issue is whether the Corps can be held responsible for allowing homes to flood as the reservoirs filled up. The so-called taking was temporary. The waters, however damaging, ultimately went down. Lawyers for the U.S. Justice Department also argued that flooding from a storm of Harvey's size was inevitable, and that the federal government cannot be held accountable. Flatt says that's far from clear.
FLATT: The evidence being presented at trial indicates that the construction of the Addicks and Barker dams and the decisions that were made to operate them during Hurricane Harvey were, in fact, a major cause of the extent of the flooding.
SCHNEIDER: This trial is just the liability phase, involving 13 property owners as test cases. If the judge rules in their favor, there are thousands of others who could join in a class action suit against the Corps. At a conservative estimate, says Flatt, the government could find itself on the hook for more than $150 million in damages. And that's just for starters, says Peter Byrne with Georgetown University Law Center.
J PETER BYRNE: The government cannot afford to lose this case.
SCHNEIDER: Byrne says that if the federal government is held constitutionally responsible for the flooding under the Fifth Amendment, there's nothing Congress can do to limit the damages the federal government is responsible for, other than to get out of the business of flood management completely.
BYRNE: You have many federal dams and reservoirs across the country, and this risk is going to be compounded again by climate change. And if the federal government loses at the trial court, there's no question in my mind that they will pursue appeals as far as the Supreme Court if they have to.
SCHNEIDER: Byrne says the Supreme Court has left open the question of whether there can be a takings claim on temporary flooding. But a decision by the D.C. Circuit Court of Appeals after Hurricane Katrina could provide some guidance that could make it harder for those suing the government.
BYRNE: They said that the plaintiffs would have to show that they would not have been flooded if the dam or flood control system had never been constructed, and that's a very difficult barrier to plaintiffs.
SCHNEIDER: Testimony in the current trial is set to wind up this week. For NPR News, I'm Andrew Schneider in Houston. Transcript provided by NPR, Copyright NPR.