"After a natural disaster, such as a hurricane, litigation often follows to determine who will pay for the consequences."
Mariner Energy, Inc. v. Devon Energy Prod. Co., 690 F. Supp. 2d 558 (S.D. Tex. 2010) (considering contractual responsibility for property damage after Hurricane Rita).
Occasionally we venture a posting on how lawyers’ business plans incorporate climate change. We have not been a hopeful cheerleader, primarily because our observations confirm that clients don’t hire climate change lawyers, they hire real estate lawyers or malpractice attorneys or plaintiffs lawyers or coverage counsel. We offer a few perspectives on Houston’s recent flooding in that light.
What kind of work can be expected? One measure might be the kinds of work that surfaced following Houston’s last major disaster, Hurricane Rita. A review of an electronic database shows over 300 reported decisions mentioning Rita. A review of some of those cases shows lots of insurance litigation, both of homeowners and commercial enterprises, as well as cases asserting the insurance broker failed to procure the proper insurance. There are contract cases where a party suffering a loss attempted to find ways to shift it to their counter-party, such as one where the business failed and the employee sought to enforce his employment contract or where co-obligors disputed their shares of the cost of an obligation to abandon a facility, which had skyrocketed as a result of the hurricane. There are tort cases where other parties suffering losses asserted someone breached a duty to maintain property (a tree that fell), or secure property (a trawler that broke its mooring), or build properly (a bulkhead that failed). You get the picture.
In an era of more frequent and more severe storms (i.e., an era of climate change), law firms might use the past storm response as a predictor of clients' future needs. They might ensure they (or someone they can rely on) can litigate a coverage case. But they might also ensure their clients’ force majeure clauses will work the right way, that risk of loss allocation is understood, and that where risk of loss is shifted, the party with the obligation will be around when called upon. Knowledge is power here.
Some law firms have already positioned themselves for Houston’s flood calamity. A Google search for “Houston flood lawyers” finds firms with their web pages up weeks or years ago: “represents individuals treated unfairly by their insurance company in the wake of flooding incidents”, a “Texas Flooding and Drainage Law Attorney”, “Water Damage Lawsuit Filed On Behalf of Texas Homeowner,” and Houston Hurricane Lawyer with a corresponding domain name. According to a survey by Yale researchers, most Texans believe climate change is occurring, but they are reluctant to credit humanity as the cause. But these flood lawyers, regardless of their thinking on climate change causation, or even on climate change itself, these lawyers are making business decisions consistent with climate change science.
One subject that was not raised in the Hurricane Rita lawsuits noted above is the role of climate change in the theory of liability. Civil engineers acknowledge climate change as significant in their planning. For example, the web bio of Richard Kellagher has this to say:
The effect of climate change on the performance of drainage systems is seen as being of grave concern and he has been involved in carrying out a number of studies looking at the implications of increased rainfall on networks. A number of studies have focused on assessing the changes in rainfall, taking into account the limitations of current climate models for predicting short duration events.
And litigation expert witnesses advertise their services. Moreover, a negligence theory based on a failure to take climate change into account in the design and operation of storm water drainage systems has already surfaced in court.
Our business is not predicting the future; it is, however, making business decisions and being an effective advocate for clients. In our view, considerations of climate change inform both subjects. We expect that recent events in Houston will lead to further developments consistent with our view.