By: Shannon Sims
“Next contestant, come on down.” On Oct. 6, in a bright courtroom in downtown Houston, Susan Braden, chief justice of the U.S. Court of Federal Claims, opens a preliminary hearing with a joke, beckoning a lawyer forward. Braden has flown in from Washington to oversee disputes involving the homes and businesses flooded in West Houston after Hurricane Harvey made landfall over Texas in late August. She has summoned attorneys interested in suing, to get their thoughts on how the proceedings should unfold.
Almost 100 lawyers are present, combed and buzzing in anticipation of what promises to be some of the most complex and expensive litigation ever brought against the federal government. Observers speculate that thousands of plaintiffs could eventually join in, and that the total damages claimed could reach $10 billion or more, especially if the big energy and oil companies—whose presence in one section of West Houston gave it the nickname the Energy Corridor—sue over their flooded headquarters. Eighty suits, 11 of which are seeking class-action status, have been filed by homeowners against the federal government, though many of the Energy Corridor’s approximately 9,500 residents are still weighing their options, speed-dating lawyers by phone and at community meetings.
Few have had time to visit a lawyer’s office. Two months after the storm, they’re still digging out, their days filled with mold inspections, debris hauls, meetings with the Federal Emergency Management Agency, fights with contractors, and visits from the moisture-meter man. Some are waiting to see whether the state government will create a relief fund to help them recover the losses on their pricey homes. A legislative solution could be preferable to drawn-out litigation; the upcoming cases are being compared to the long-running suits over the levee failures in New Orleans during Hurricane Katrina.
When a lawyer makes this link in court in Houston, Braden, who oversaw the Katrina cases for almost a decade, recalls how long it took to get that litigation organized. “I don’t want to wait 14 months to do something,” she says. “No one is living in those homes.”
The lawyers in attendance are from all over the country: New Jersey, New Orleans, Washington, D.C. “It’s clear the court is incredibly focused on this case,” Jay Edelson, a class-action attorney known for challenging the titans of Silicon Valley, observes afterward. He flew down from Chicago with a few of his firm’s lawyers for the hearing. Everyone is mindful that, with extreme weather pushing the country’s infrastructure to the limits, the decisions made by Braden’s court 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.
Thistlewood Drive was everything Anji and Josh Moore dreamed it would be. Evenings, Anji would wait for Josh to return from his job with an oil industry contractor, feeding baby Luke while 5-year-old Nathan played soccer in the street. The family’s one-story home in the Thornwood neighborhood, modest for the block, featured a backyard patio perfect for grilling, framed by tall pines with puzzle-piece bark that cicadas would cling to as they screamed down the dusk. Neighborliness prevailed: Husbands would help with one another’s home repair jobs. Sugar was borrowed and returned doubled.
As the storm moved in on the weekend of Aug. 26 and 27, Josh kicked into action. He’d seen the backyard flood during heavy rains, and if this one was as bad as the forecasts said it would be, the water could creep into the house. There were new floors to be concerned about, blond cypress. And so, over Anji’s protests, Josh got out a shovel and started building a moat, ripping out patio bricks and digging a foot beneath them as the rain soaked through his shirt.
One street over on Langwood Drive, Robert Haines was anxious. The retired 71-year-old stockbroker had been watching the weather reports from his living room recliner for hours. He’d served in the 82nd Airborne Division during the Vietnam War and lived through a dozen Gulf Coast hurricanes, experiences that should’ve helped him remain calm. But the forecasts looked scary on the coast, 45 miles south, where Kyle Haines, his husband and partner of 15 years, had gone a few days earlier. The storm was crossing right over the hotel where Kyle had holed up. Robert called Kyle’s cell, crying. Kyle was 35 years younger, and Robert often acted as his protector. “Please come home,” Robert said, imploring Kyle to return to their white brick, one-story ranch house, where it surely wouldn’t flood.
Saturday night, over on Kickerillo Drive, Dave Johnston couldn’t sleep. The retired Exxon Mobil Corp. geophysicist was prepared enough: He and his wife, Linda, both in their mid-60s, had spent the day hauling furniture upstairs. Now Dave had a bag packed and his shoes on in case the couple needed to flee. At around 2 a.m., he spotted shadowy figures beside his front windows—his neighbors, braving the driving rain, walking the high ground near the houses with their most important possessions wrapped in garbage bags and held above their heads.
Dave and Linda discussed leaving. The situation was clearly getting dire, but staying might be safer. Water was already flowing in the street, and the house was still dry. They decided to wait out the night and leave the next day.
On Sunday, debates inside homes grew tenser, as residents weighed their reluctance to leave against their fear of the unknown. The geologists, physicists, MBAs, lawyers, and engineers living in the Energy Corridor consulted the tools they’d set up to measure the deluge: yard flags, measuring sticks, charts, and photographs.
That evening, 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.
By Friday, Sept. 1, with water still gushing through the floodgates, conditions in the Energy Corridor had worsened to the point that Mayor Sylvester Turner issued a voluntary evacuation order there. “I know people are staying because they want to protect their property,” he said. “But if you are living in a home today with water in your home, that situation is not going to change for 10 to 15 days.”
Frustrated that residents were struggling to save their things, Greg Travis, the district’s city council member, managed to call in five high-water vehicles and start a patrol. Residents who’d left signed up for boat rides home, where they’d get 30 minutes to retrieve what they could.
On Saturday, as floodwaters elsewhere in Houston were receding, Turner had no choice but to make the evacuation mandatory for the 4,600 Energy Corridor dwellings “already flooded by water.” Three hundred people, his office said, had remained in their flooded homes. Turner also cut off electricity to the area and established a midnight to 5 a.m. curfew to help police isolate anyone looting evacuated homes. “Put your own personal safety above your property,” he said in theorder, explaining that “the floodwaters there are caused by the U.S. Corps of Engineers’ controlled releases of water.” (In a later interview with the Texas Tribune, he accused the Corps of not communicating clearly about “the magnitude or the effect of them releasing that water.” Turner’s office declined to comment for this story.)
Only on Sunday, nearly a week after the releases began, did the Corps slow the rate. The next day, they hosted another press conference, at which they showed time-lapse maps of the flooding. The surrounding areas were all still blue; it would take six more days, until Sept. 10, for the water in West Houston to finally subside.
A few weeks later, I find Tim Fitzpatrick, a cabinet maker and football coach, sweating and shirtless in front of his home. He’s dragging moldy chunks of drywall across his dead yard. Muck-covered trophies, sports gear, and picture frames are piled on top of folding tables, as though for a toxic-wreckage garage sale. “Hell yeah, I’m pissed,” he spits. He says he’s still deciding whether to sue. “This was not an act of God, this was an act of man. They pushed us onto a grenade to save the rest of the city.” He crushes a beer can in one hand and tosses it aside, then picks up a sledgehammer and brings it down, hard, on a ruined cabinet.
In the 73rd-floor offices of the Buzbee Law Firm, Texas swagger prevails. The door handles are custom-made, foot-long silver sharks. The bar is stocked with expensive bourbon, and signed Houston Astros jerseys hang on the walls. Framed newspaper clippings celebrate multimillion-dollar verdicts and a successful defense of former Texas Governor Rick Perry against felony abuse-of-power charges. Marble floors lead to massive windows overlooking almost every building in the country’s fourth-biggest city and Buffalo Bayou curving below.
Tony Buzbee, a trial attorney of some 20 years, regrets only that he’s not on the top floor, right above. “They won’t sell to me,” he says with a puckish smile, leaning back in his chair. He’s in a checked, cornflower-blue blazer with a scarlet handkerchief stuffed in the pocket, explaining his confidence in the West Houston litigation. “It’s a humdinger of a case,” he crows. “We know when the decisions were made, we know who made them, and we know that when they made them they knew which subdivisions would flood.” A young lawyer handling one of the files is called in and excused. Buzbee watches him leave with a look of satisfied wonder. “He’s so nervous around me,” he says, laughing and taking a gulp of Muscle Milk.
Buzbee has made a career of righteous crusades, though not necessarily on behalf of the poor or the meek. He was one of the first lawyers on the scene in the Energy Corridor, making his pitch to residents of the Thornwood neighborhood on Sept. 5, while the water still stood in their kitchens. It seems to have worked: He’s signed almost 400 clients. “Eventually I will have 1,000,” he promises. Indeed, his name tumbles freely from the mouths of frustrated residents. He’s become the default for those too weary to research or too angry to wait.
Other lawyers say the residents shouldn’t litigate in haste. Maybe the government will step up and “do the right thing,” I hear repeatedly. “I haven’t taken thousands of cases,” says Rene Sigman, a local attorney who specializes in flood insurance claims and has several West Houston clients. “You want people to try to work things out with their insurance claims as much as you can.”
Buzbee waves off such caution. “If you have your case on file and have litigated your case, you will always have better standing than someone who is sitting on the sidelines,” he says.
His approach to the West Houston suits is based on a fascinating legal argument, one that taps at a core Texan belief: The government should leave you the hell alone and pay you back if it doesn’t. The takings clause of the U.S. Constitution’s Fifth Amendment forbids the federal government from seizing citizens’ property without paying for it: “[N]or shall private property be taken for public use without just compensation.” Attendant case law holds that when a government “takes” property for the public good without going through eminent domain proceedings, the owner can claim that an “inverse condemnation” has taken place, arguing that property was unfairly taken, damaged, or destroyed, and that payment is due.
Until 2012 the government successfully argued that it wasn’t legally responsible for decisions made in response to temporary flooding. That year the Supreme Court laid out a new multifactor test that could establish government liability in such cases. The majority opinion, written by Justice Ruth Bader Ginsburg, held, for example, that the government should compensate a property owner for a taking if it has interfered with a “reasonable, investment-backed expectation.” That is, if it was reasonable to expect that a home you invested in wouldn’t flood, but it does, and a court finds the government responsible, then compensation could be due.
State Senator Joan Huffman, who’s also a former judge, says, “I’m not here to point my finger at the Corps, to say you should have done it or shouldn’t have done it. But they did it, and that act resulted in a taking.” For Sigman, it’s also pretty clear: “When I look at the case law, and I look at what happened here … if this isn’t a takings case, then what is?”
Legal experts located farther from the emotional swirl of Houston’s recovery have a colder view of the plaintiffs’ case. John Echeverria, a professor at Vermont Law School who specializes in takings law, and Robert Meltz, special counsel for the environmental group Defenders of Wildlife, wrote an article about the Harvey cases in which they question whether some of the plaintiffs will be able to meet the various standards laid out by the Supreme Court. They also point out that the Corps’ decision “raises the issue of how the takings clause should apply when the government has nothing but bad options.”
Lynn Blais, a professor at the University of Texas School of Law in Austin who also specializes in takings claims, says that perhaps the most convincing argument the federal government could use in court would be to assert that “these homes would have flooded if the reservoirs were never constructed in the first place.” The reservoirs were, she notes, built for “flood control, not flood prevention.”
The Addicks and Barker reservoirs were constructed in the aftermath of flooding that killed eight people in 1935. By the 1960s, developers like Vincent Kickerillo had started building neighborhoods such as Thornwood on what was largely prairie land, just downstream from the dams; Kickerillo’s company alone has built 15,000 homes in 40 West Houston communities. And as the oil and energy industries boomed, major headquarters—Exxon, ConocoPhillips, Aramco—moved to West Houston. From 2005 through 2016, property values in the Energy Corridor quadrupled. The wild prairie land inside the reservoirs, which is usually dry, became the site of kids’ sports events and weekend bike rides.
This land and many of the homes to the north and west of the dams are located in what’s known as the flood pool—the upstream portion of the reservoirs. In some cities, developers are prohibited from building in these areas, but in Houston there are no such restrictions. Many homeowners west of the Barker dam claim they didn’t know they were in a flood pool, that they hadn’t spotted the fine print on the bottom of some of their subdivision maps. (“Who looks at a subdivision map?” one resident asks.) The text of one such map reads, “This subdivision is adjacent to Barker Reservoir and is subject to extended controlled inundation under the management of the U.S. Army Corps of Engineers.”
At the first hearing in federal court, many of the lawyers involved in the litigation asked Braden to separate claims from the north and west areas—the upstream ones—from downstream ones, to the south and east. Buzbee, for one, says of the upstream claims, “I won’t touch them.” It’s a hard case to prove—you build in the flood pool, you flood in the flood pool.
Most lawyers agree that the downstream cases stand the best chance of winning a takings claim. Many of the homes there—even some lying just feet from the bayou—have endured since being built by Kickerillo in the ’60s, not flooding during major weather incidents such as Hurricane Ike and last year’s Tax Day floods. That history explains why many residents I spoke with would angrily utter the word “shouldn’t” as they glanced around living rooms of stripped-out drywall and cement-slab floors. “My home shouldn’t have flooded,” they’d say. Now they’ll need to prove causation in court: that but for the releases, their homes wouldn’t have flooded, even during a hurricane like Harvey.
“They pushed us onto a grenade to save the rest of the city”
The Department of Justice, which is representing the Army Corps of Engineers in the lawsuits, declined to comment for this article. The Corps wouldn’t grant an interview with Colonel Zetterstrom but did set up a call with Edmond Russo Jr., deputy district engineer for programs and project management. Russo wouldn’t elaborate on the specific decisions leading up to the releases, but he did say that the Addicks and Barker dams were designed to impound water and let it out slowly after the rain passes: “That’s what saves the city from devastating floods.” Four of the top 10 record dam levels, he points out, occurred in the past decade. “In less than a week we got more than a year’s worth of rain,” he says. “That’s epic. I don’t think anyone could have imagined that could occur.”
Years ago insurance companies mapped out the susceptibility of Houston neighborhoods to flooding, a key indicator for lenders. A few of the downstream homes are located in what’s called the 100-year flood plain, which means they have a 1 percent chance of being flooded each year; mortgage-holders there are required to get flood insurance. Thistlewood Drive, Langwood Drive, and Kickerillo Drive, where the Moore, Haines, and Johnston homes are located, lie in the 500-year flood plain, which has a 0.2 percent chance of flooding each year. Only about half the homes in the 500-year flood plain were insured—many residents saw it as a wasted $450 a year.
Blais isn’t sure that even the 500-year flood plain homeowners will be able to make their case in court. “If you are close to the coast in hurricane country, and you build a house downstream from a reservoir and near a bayou, and everything around you is called ‘bayou’-something, what are your reasonable expectations of being flooded?” she asks. “You probably should have thought of that.”
Council member Travis, himself a lawyer, is also pessimistic about his constituents’ chances of recouping their losses, even if they win their cases. “You’re not going to get dollar to dollar,” he says. “You’ll just get a settlement, and 40 percent of it will go to the attorney, and you’ll only get it 7 to 10 years down the road. But, hey, good luck.”
There are also concerns that, if the cases succeed, they could create a daunting precedent for the government. Ginsburg’s 2012 opinion tried to assuage fears that a broader takings standard would lead to a “deluge” of claims, but Echeverria and Meltz write that this could be exactly what happens. The takings clause could, they say, become “a kind of social insurance program for risk associated with climate change.” The notion of “historic flooding” inscribed in the 500-year flood plain standard won’t mean much if climate change scrambles that math. What’s more, they write, “successful takings litigation may actually impede initiative to take steps to avoid the worst effects of climate change.” Why build a dam, after all, if operating it could cost you billions of dollars in lawsuit payouts?
The issue of climate change is especially complicated in the Energy Corridor, where companies often deemed complicit in global warming are the neighborhood employers. At various points in my interviews with residents, I bring up the hovering question of climate change. Almost uniformly, they demur. “I’m not a climate scientist,” geophysicists and environmental engineers say, “so I can’t tell you one way or the other.”
Thornwood was once a beautiful neighborhood. I know this because I grew up down the street. I swam competitively against the Thornwood Sharks, the kids of homeowners there. My birth certificate was stored in the bank behind Anji and Josh Moore’s house, in a safety deposit box that pooled with toxic water for more than a month. My family’s home didn’t flood, but we were just blocks from the waterline—a fluke of topography that led our neighbors to start referring to my parents and the few other families spared by the reservoir releases as “the lucky ones.”
When I ride my bike through the neighborhood a few weeks after the flooding, I remember how it used to look: the tidy white shutters, the large front lawns, the faux-gaslit lamps. Now the shutters are stained with brown waterlines, and the swim team signs have been replaced by ads for contractors. At night, the streets are dark and the sheared wires of the lanterns, torn from their posts, reach into the air.
Anji and Josh Moore are still trying to pick up the pieces when I visit them. They have an ozone machine running—“It’s supposed to get out all the toxic chemicals that the water left in the walls,” Anji says. They evacuated the day after Josh dug his moat, when a stranger knocked on the door and offered a boat ride. They waded back a few days later, before the mandatory evacuation order, to try to salvage what they could. “When I opened that door, it was the worst moment of my life,” Anji recalls. Snakes swam alongside the children’s toys.
On Kickerillo Drive, Dave Johnston is still waiting on flood insurance payments, stopping by the house in his spare time to prep it for new drywall. He and Linda are considering selling the house, if anyone will buy it. “I don’t understand why they had to have such a massive release,” he says, shaking his head. “I don’t know why they didn’t start releasing at a lower level earlier.” He’s still debating whether to pursue litigation, but says, “The idea of compensation for the condemnation of my property makes sense to me.”
Langwood Drive is a ghost street. There are no streetlights, no people, no sounds. The flooded homes sit empty, their doors open and windows broken, despite pleas in the homeowners association newsletter to board them up. At night, Langwood is patrolled by possums, and only falling acorns cut the silence.
One ranch house stands out, its white brick exterior covered with multicolored graffiti scrawl and rainbows. At first it looks like vandalism. Then you read the words: “My husband Captain Robert Haines of the 82nd Airborne Division perished in our home during Hurricane Harvey.”
Kyle says that by the time the dive team recovered Robert’s body, after multiple attempts, it had been floating in the bathroom for almost two weeks. Just feet away, above the waterline, was their dog, Paddy, thin and shivering but alive. The coroner’s office called the number on the dog’s tag and reached Kyle. Robert must have put Paddy up high, Kyle figures. He found old photos stashed above the waterline, too.
Kyle comes to the house every day around sunset. He brings a can of Foster’s beer, Robert’s favorite, and pours it into the bushes, in a kind of tribute. “I don’t really know why,” he says. He speaks in a sped-up stammer, zigging and zagging through the timeline of those 13 days. The death certificate says Robert drowned, but Kyle speculates that his husband, cut off from communication with the water rising, may have panicked and had a heart attack or a stroke—“or maybe he was electrocuted.”
“I’m 100 percent certain Robert died because of the dam releases,” Kyle says. “It was because of their irresponsibility that they didn’t force people to get out before they released the water. I think they should have busted doors down and said, ‘The reservoir’s going, you gotta get out now.’ ” He plans to join his neighbors in filing suit. Unlike them, he’ll also file for wrongful death. Buzbee is his lawyer.
“One of the funny things is … well, not funny, but … we paid flood insurance up until July,” he says over the cicadas, brushing mosquitoes off his arm. “Bob just didn’t think it was going to flood.” He looks back into the darkened house. “You never expect your loved one to drown in your own home.”