Harris County Flood Control District v. Kerr

The Texas Supreme Court held that municipal governments were not liable under a takings theory for flood damage when they approved development without implementing mitigation measures to address known flood risks. The court withdrew a 2015 opinion in which it had said that homeowners who suffered flood damage had raised an issue of fact in their takings claim. The new majority opinion noted that many public and private amicus curiae had urged rehearing because the homeowners’ theory of liability would “vastly and unwisely expand the liability of governmental entities.” The court described some of the hypothetical situations in which liability might be expanded, including a “disturbing” hypothetical raised by the Harris County Metropolitan Transit Authority that suggested that imposition of liability under a takings theory in the instant case could serve as precedent for holding governments liable for hurricanes allegedly caused by global warming. The court quoted the amicus brief, which stated: “Experts can be hired who will testify that burning fossil fuels raises sea levels and makes storms more intense. Yet governments issue permits allowing exploration and production of fossil fuels, and construction and operation of the power plants that burn them.”