Hurricane Harvey greatly impacted Houston and other areas of theGulf Coast, with Hurricane Irma following close behind in theCaribbean, Florida and the Southeast. The widespread impact of thewind and flooding from these severe weather events will undoubtedlyinclude conditions caused by chemical and petroleum releases. Aswith other effects of these storms, the lasting consequences ofsuch hazardous material releases are yet to be fully apprehended.Those thoughts are according to Peter Duchesneau, an environmentallitigation partner at Manatt, Phelps & Phillips LLP and MichaelC. Polentz, co-chair of the real estate and land use practiceGroup.

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According to the team, “given the potential for the hurricanesto have caused or exacerbated property contamination, twoseldom-invoked, biblical-sounding cleanup liability limitations maycome into play: the act of God and the Good Samaritan defenses.”And although both liability limitations seem custom-made for theseevents, the team says that “given the widespread flooding befittingNoah's Ark, experience has shown that neither will likely havebroad application in the wake of these colossal storms.”

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The views in the full commentary below are Duchesneau andPolentz' own.

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The U.S. Environmental Protection Agency has determined that 13Superfund sites were flooded and possibly damaged as a result ofHurricane Harvey. Refineries and chemical plants were reported tohave been impacted by flooding, and it is not yet known how manysmaller facilities that managed hazardous materials were damaged bythe storms. As parties are faced with the aftermath of hazardousmaterial releases caused by the hurricanes, whether the act of Goddefense applies may be among the first questions that come to mind.The act of God defense is found in the Comprehensive EnvironmentalResponse, Compensation, and Liability Act (CERCLA)—otherwise knownas “Superfund”—as well as the Clean Water Act and the Oil PollutionAct of 1990. An “act of God” is defined as an unanticipated gravenatural disaster or other natural phenomenon of an exceptional,inevitable and irresistible character, the effects of which couldnot have been prevented or avoided by the exercise of due care orforesight. At first glance, the act of God defense lookstailor-made to fit the exceptional, grave natural disaster of the1,000-year flooding that occurred in Houston due to HurricaneHarvey. Yet, scholarly research has found that despite pastmonumental storms and other natural disasters, there have been noreported cases where a court has actually accepted this defense.While each case is unique, other elements required to establish thedefense may prove a challenge to demonstrate. For instance, modernweather forecasting may make it difficult to prove the storms werenot foreseeable. Moreover, since a party must establish that arelease was caused solely by an act of God, their own lack of duecare and preventive measures will be scrutinized as contributingfactors.

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On the other side of the coin are those who entangle themselvesin cleanup liability while aiding the victims of natural disasters.In such cases, the Good Samaritan defense may offer protection, butit too has limitations. Under CERCLA, state and local governmentsare protected from liability for actions taken in response to anemergency created by the release of hazardous substances, barringgross negligence or intentional misconduct (assuming they do notown the facility). Nongovernmental parties have more limitedprotections when it comes to rendering care, assistance or advicewith respect to an incident creating a danger to public health orwelfare or the environment as a result of hazardous substancereleases. Such Good Samaritans are protected from liability only ifthey are working in concert with the government in accordance withthe National Contingency Plan, a set of federal regulations forresponding to oil spills and hazardous substance releases, and arenot otherwise negligent.

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There is no doubt that parties will be dealing with the effectsof these severe storms for a long time to come. The ramificationsof hazardous material releases will be among the hurricanes'legacies. While new law may be made in the course of sorting outresponsibility for addressing the aftermath of Hurricanes Harveyand Irma, parties should shore up their plans for contending withfuture natural disasters or other natural phenomena. This willeither serve to prevent hazardous material releases come the nextmajor storm event or help demonstrate that the damage was truly anact of God.

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Natalie Dolce

Natalie Dolce, editor-in-chief of GlobeSt.com and GlobeSt. Real Estate Forum, is responsible for working with editorial staff, freelancers and senior management to help plan the overarching vision that encompasses GlobeSt.com, including short-term and long-term goals for the website, how content integrates through the company’s other product lines and the overall quality of content. Previously she served as national executive editor and editor of the West Coast region for GlobeSt.com and Real Estate Forum, and was responsible for coverage of news and information pertaining to that vital real estate region. Prior to moving out to the Southern California office, she was Northeast bureau chief, covering New York City for GlobeSt.com. Her background includes a stint at InStyle Magazine, and as managing editor with New York Press, an alternative weekly New York City paper. In her career, she has also covered a variety of beats for M magazine, Arthur Frommer's Budget Travel, FashionLedge.com, and Co-Ed magazine. Dolce has also freelanced for a number of publications, including MSNBC.com and Museums New York magazine.

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