Looking into the future of climate change adaptation, meeting the twin climate change adaptation policy goals of reducing vulnerability and increasing resilience is difficult to envision without vast infusions of new and retrofitted infrastructure designed with adaptation in mind. A “defend the coast” strategy for a coastal jurisdiction facing sea level rise, for example, is likely to require coastal armoring and road improvements, and a retreat strategy necessarily requires new infrastructure to support displaced populations. Private and public investment in climate change adaptation infrastructure is likely to be extensive, and it is as likely that it will fail in some instances due to design defects and poor operating decisions. Given it is intended to reduce vulnerability and increase resilience, failure of adaptation infrastructure could have dire consequences for communities. If that happens, who will be liable? And what if government entities provide no adaptation infrastructure in the first place? The law of public infrastructure liability is likely to undergo intense pressure as questions like these are increasingly put in play.
One clue as to the law’s development on the failed infrastructure issue may come from the recent flurry of litigation against the Corps of Engineers after Hurricane Katrina. The federal government’s extensive involvement in design, construction, and operation of flood control infrastructure is carried out within a complex legal environment, including strong sovereign immunity protections for discretionary actions under the Federal Tort Claims Act and specific immunity for certain flood related damages under the Flood Control Act. So far, that shield has thwarted post-Katrina claims against the Corps. For example, the Fifth Circuit initially found the Corps liable in tort for negligent maintenance of a shipping channel that had the effect of funneling storm surge water toward New Orleans, which in turn contributed to the levee failures, but later reversed itself. In re Katrina Canal Breaches Litigation, 696 F.3d 436 (5th Cir. 2012), rev’g In re Katrina Canal Breaches Litigation, 673 F.3d 381 (5th Cir. 2012). Another court rejected a takings claim grounded on the theory that the Corps failed adequately to design, build, and maintain sufficient levee systems. Nicholson v. United States, 77 Fed. Cl. 605 (2007). The Mississippi flood of 2011 has led to similar claims over the adequacy of flowage easements the Corps obtained to facilitate its intentional release of water through impoundment structures to relieve upriver flooding. Quebedeaux v. United States, No. 11-389L (Fed. Cl. filed Sept. 2, 2011); Big Oak Farms Inc. v. United States, No. 11-275L (Fed. Cl. filed Sept. 9, 2011).
Events like Katrina, the 2011 flood, and more recently Hurricane Sandy are rare and their timing unpredictable, and given strong principles of sovereign immunity, courts have generally not held federal and state infrastructure agencies like the Corps liable for infrastructure failure outside of a quite narrow set of circumstances. But as the Corps and other public agencies begin constructing and operating more sea walls, levees, dikes, and other protective infrastructure, it is not clear how the courts will integrate and balance the certainty that “sationarity is dead” with the uncertainty regarding what exactly that means in terms of adequate design and operation of protective infrastructure. What is a discretionary action in climate change adaptation, what is negligent in such a decision environment, and what an agency “knows” about climate change, are questions surely to rise in courts and perhaps receive special attention in Congress and state legislatures.
Even more of a puzzle is raised if public authorities, either for cost reasons or to avoid liability exposure, cede climate change infrastructure decisions to private markets–i.e., decide not to adapt. Might governments be liable for failure to adapt? The answer is likely to depend on the status of public infrastructure before the advent of sea level rise and other climate change impacts and on the state of knowledge about those impacts. Consider a coastal area in which no public infrastructure has been provided to protect against storm surge or other erosive forces, which is the case in much of the nation’s coastal areas. In that scenario, absent specific legislation there is no precedent for imposing takings or negligence liability on public authorities for failure to provide such protection—there is no inherent sovereign duty to provide a sea wall or levee. It is difficult to envision courts imposing such a duty even as climate change begins to exacerbate storm surges, flooding, wildfire, and other harmful effects.
On the other hand, when public authorities have already provided protective infrastructure at some scale, their knowledge that the infrastructure is inadequate to protect against known increased risks has in some cases led to liability for negligence, though some courts have held there is no inherent duty to upgrade facilities. See e.g., City of El Paso v. Ramirez, 349 S.W.3d 181 (Tex. App. 2011) (city aware of potential for overflow from retention pond was negligent in not taking measures to prevent such overflows); Coleman v. Portage County Engineer, 2012 WL 3734459 (Ohio Aug. 29, 2012) (failure to upgrade is different from failure to maintain and is subject to local immunity). One recent example is Livingston v. Virginia Department of Transportation, 2012 WL 2036936 (Va. June 7, 2012), in which the court held the state transportation agency could be held liable for flooding during an extraordinary storm event based on its failure to maintain a dredge channel it had modified. As with the federal flood liability litigation discussed above, federal and state sovereign immunity law will be an important factor in determining the scope of public liability in such “failure to adapt” cases.