The Government’s Right to Flood You Out

I was always taught to put your best argument first. Otherwise, the people you’re trying to convince might get caught up on something else and never get to it. In judicial opinions, the court is trying to convince the litigants and the public at large that the court made the right decision. They are so busy, however, that you sometimes come across opinions that are organized more like prose transcriptions of the judges’ notes than a piece of argument. The Fifth Circuit’s opinion in Residents Against Flooding v. Reinvestment Zone No. 17, No. 17-20373 (May 22, 2018) (per curiam) is just such an opinion. To be fair, the opinion isn’t signed, so we shouldn’t necessarily expect anything interesting out of it. Still, this post isn’t meant to criticize, but to consider how the argument could have been structured. 

The case arose when some residents in Houston sued their local government for designing and implementing a stormwater drainage system so that excess stormwater was diverted away from commercial areas and into their neighborhoods, causing floods and interfering with their rights and abilities to use their homes. The district court dismissed the claims, and the Fifth Circuit affirmed.

One of the residents’ theories was that the City’s plans violated their substantive due process rights under the 14th Amendment. To win on that claim, the residents would have to show (1) that there was governmental conduct (2) that interfered with a constitutionally protected right and (3) that was not rationally related to a legitimate government interest. The first element was not in dispute. Clearly, designing and implementing a stormwater drainage system is government conduct. But does it implicate a constitutionally protected right?

The residents said they had a constitutionally protected “right to use their homes.” Slip Op. at 4. I have to admit: I find that rhetorically appealing. Of course you have a constitutional right to use your home. What else does the Third Amendment stand for if not that? But the Fifth Circuit was not persuaded. That phrasing “is too broad and unsupported by caselaw.” Slip Op. at 4-5. But the Fifth Circuit didn’t cite any caselaw saying you don’t have a right not to be flooded out by government conduct. Instead, it just labels the caselaw cited by the residents as “inapplicable.” Slip Op. at 5. I dunno. I’m not convinced.

But “Even assuming that the government projects implicated a constitutionally protected right” — which feels like an unrebutted assumption — “these projects were at least debatably rationally related to a legitimate governmental interest” because “the government objectives were to improve its tax base and the general welfare.” Slip Op. at 5-6. Sure, that’s legitimate. But improving the tax base by flooding one property instead of another? The court might as well have cited Kelo v. City of New London, 545 U.S. 469 (2005).  Do you remember that case? In it, the U.S. Supreme Court said that local governments had the right to force private owners to sell their property as part of a “comprehensive redevelopment plan,” even when that plan involves the local government turning around and selling the property to another private owner. It’s one of the most controversial decisions of this century. If this case had come out of the Ninth Circuit, we’d be hearing calls to revive the House Un-American Activities Committee.

OK. So you think people have a constitutional right to use their homes and that local government shouldn’t interfere with that? Too bad. “This case is analogous to York v. City of Cedartown, 648 F.2d 231 (5th Cir. Unit B 1981). In York, “the plaintiffs . . . alleged that the government’s actions with regard to infrastructure and drainage resulted in ‘water and sewage . . . deposited on [the] appellants’ property’ during times of ‘excessive rainfall’, depriving them of their property rights.  We held that the appellants failed to allege facts that rose to the level of a violation of the U.S. Constitution.”  Slip Op. at 6-7.

Wait, what?  There’s a case directly on point?  Why didn’t you lead with that?  I may or may not agree with you that a local government plan that floods my neighborhood doesn’t “involve” my property, and I may or may not agree with you that flooding one local property instead of another is rationally related to increasing the tax base or that increasing the tax base by itself is a legitimate government objective, but we can all agree that stare decisis is extremely important.  It’s what sets the Anglo-American common law system apart from the French and German civil law system used in most of Europe and Latin America.  In America (and the other common law legal systems), we don’t decide cases by resorting to a dictionary.  We decide them by looking to our collective experience in resolving disputes. 

On-point caselaw wins every time. It would have been totally acceptable for the City to argue that the Fifth Circuit had already decided this exact question back in 1981.  It would have been totally acceptable for the Fifth Circuit to cite York with little more explanation than, “the Residents want us to do x, but that is foreclosed by precedent.”  They do it all the time in criminal cases.  It’s interesting that they didn’t do it here.


I know what you’re thinking. The City won, the Supreme Court didn’t grant cert. Who cares? Well, I started to read the case because I was in Houston during Hurricane Harvey, and I remember the “controlled releases.” Thankfully, I was living in an old part of town that wasn’t built in a flood plain. But I know people whose homes were “implicated” in the “controlled releases.” So I was interested to see how the Fifth Circuit dealt with these issues. My initial sense is that the government ought to be liable for that somehow. After all, government action created the risk of flooding and government action literally caused the flooding. Why shouldn’t they be responsible?

And I gotta tell you: baldly stating that “their [the residents’] claimed right to use their homes is too broad and unsupported by caselaw” just doesn’t convince me.

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