Harvey and Hindsight

Posted on October 10, 2017 by Tracy Hester

There’s nothing like a good catastrophe to make your typical disaster planning look bad.

You hear the word “unprecedented” a lot in Houston these days.  Hurricane Harvey brought an astonishing 50.1 inches of rain to the Houston region over three days, which means the storm effectively provided our entire annual rainfall within the space of three weeks.  The deluge damaged 195,714 homes in Texas, forced over 7,500 Texans into emergency shelters, shut down power and transportation to thousands more, and triggered hundreds of inspiring do-it-yourself rescue missions as flooded neighbors helped each other when official high water rescue teams faced impossible demands.

The environmental cost was, also, “unprecedented.”  Even Tropical Storm Allison and Hurricane Ike did not cause the scale of refinery shutdowns, upset emissions, wastewater treatment system disruption, and chemical plant incidents (including spectacular explosions and fires at the Arkema chemical plant) that we saw in the greater Houston region during Harvey.  At least 13 CERCLA sites in the greater Houston area flooded, and EPA was unable to even access numerous sites for over a week to assess any damages or identify any releases.

“Unprecedented,” however, has a different connotation when viewed through a legal lens.  The post-Harvey environmental liability battles have only just begun, and they promise to raise a broad array of challenging legal issues.  The flooding damage lawsuits alone (including takings claims against the U.S. Army Corps of Engineers) are multiplying fast.  In particular, EPA has already contacted PRPs at some flooded CERCLA sites to demand that they respond to hazardous substance releases – which might have some ACOEL members closely scrutinizing the model reopener provisions and the scope of covenants not to sue in their clients’ consent decrees.  The Act of God defense will likely get a fresh re-examination, including arguments about how to apply it when hurricanes – even massive ones - are not exactly a surprise in the Gulf Coast region.  And fires, explosions, and discharges at facilities could turn a spotlight onto the scope of the general duty clause under Section 112r of the Clean Air Act and the legal penalties for inaccurate or delayed initial release reports under CERCLA and other statutes.

In the long run, Texas and Houston – and other coastal states, counties, cities and towns– will need to revise their disaster frameworks to anticipate and account for Harvey-type storms into the future.  These storms are no longer, unfortunately, “unprecedented,” and the standard terms of consent decrees and agreed orders on liability for secondary releases from post-remediation incidents will need a lot more scrutiny than they’ve typically received.  

Assisting in the Aftermath of Hurricane Harvey: Every Lawyer Can Help!

Posted on August 30, 2017 by Brian Rosenthal

Also authored by Andrea Field & Mary Ellen Ternes

Many in the College have been asking what lawyers can do to help those in need in Texas in the aftermath of Hurricane Harvey.  Answers to that question are pouring in from many sources.  The following are a few suggestions, based on what we are hearing from legal practitioners and aid organizations in Texas. 

First, if you are a member of the State Bar of Texas, you may have received a letter from Bar President Tom Vick.  It outlines specific ways in which you can provide legal and desperately-needed non-legal help.

Lawyers who are not members of the Bar of Texas, though, can also provide legal services.   Yesterday, the Supreme Court of Texas issued an emergency order to allow out-of-state lawyers to practice in Texas temporarily in the aftermath of Hurricane Harvey, and the Court provided a registration form for the temporary practice of law in Texas. According to Betty Torres – the Executive Director of the Texas Access to Justice Foundation, which is the largest funding source of legal aid in Texas – the following are some of the types of legal services that will be in high demand after the water recedes and people try to put their lives back together:  (i) assistance with securing FEMA and other benefits available to disaster survivors; (ii) assistance with life, medical and property insurance claims; (iii) help with home repair contracts and contractors; (iv) replacing wills and other important legal documents destroyed in the disaster; (v) assisting in consumer protection matters, remedies and procedures; and (vi) assistance with mortgage/foreclosure and landlord/tenant problems.

In addition, as is often the case, what is needed most right now is money.  For those who want to assist all Texans in need of essential legal services, please donate to the Hurricane Harvey Legal Aid Fund.