Hurricane Harvey greatly impacted Houston and other areas of the Gulf Coast, with Hurricane Irma following close behind in the Caribbean, Florida and the Southeast. The widespread impact of the wind and flooding from these severe weather events will undoubtedly include conditions caused by chemical and petroleum releases. As with other effects of these storms, the lasting consequences of such hazardous material releases are yet to be fully apprehended. Those thoughts are according to Peter Duchesneau, an environmental litigation partner at Manatt, Phelps & Phillips LLP and Michael C. Polentz, co-chair of the real estate and land use practice Group.

According to the team, “given the potential for the hurricanes to have caused or exacerbated property contamination, two seldom-invoked, biblical-sounding cleanup liability limitations may come into play: the act of God and the Good Samaritan defenses.” And although both liability limitations seem custom-made for these events, the team says that “given the widespread flooding befitting Noah's Ark, experience has shown that neither will likely have broad application in the wake of these colossal storms.”

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

The U.S. Environmental Protection Agency has determined that 13 Superfund sites were flooded and possibly damaged as a result of Hurricane Harvey. Refineries and chemical plants were reported to have been impacted by flooding, and it is not yet known how many smaller facilities that managed hazardous materials were damaged by the storms. As parties are faced with the aftermath of hazardous material releases caused by the hurricanes, whether the act of God defense applies may be among the first questions that come to mind. The act of God defense is found in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)—otherwise known as “Superfund”—as well as the Clean Water Act and the Oil Pollution Act of 1990. An “act of God” is defined as an unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight. At first glance, the act of God defense looks tailor-made to fit the exceptional, grave natural disaster of the 1,000-year flooding that occurred in Houston due to Hurricane Harvey. Yet, scholarly research has found that despite past monumental storms and other natural disasters, there have been no reported cases where a court has actually accepted this defense. While each case is unique, other elements required to establish the defense may prove a challenge to demonstrate. For instance, modern weather forecasting may make it difficult to prove the storms were not foreseeable. Moreover, since a party must establish that a release was caused solely by an act of God, their own lack of due care and preventive measures will be scrutinized as contributing factors.

On the other side of the coin are those who entangle themselves in cleanup liability while aiding the victims of natural disasters. In such cases, the Good Samaritan defense may offer protection, but it too has limitations. Under CERCLA, state and local governments are protected from liability for actions taken in response to an emergency created by the release of hazardous substances, barring gross negligence or intentional misconduct (assuming they do not own the facility). Nongovernmental parties have more limited protections when it comes to rendering care, assistance or advice with respect to an incident creating a danger to public health or welfare or the environment as a result of hazardous substance releases. Such Good Samaritans are protected from liability only if they are working in concert with the government in accordance with the National Contingency Plan, a set of federal regulations for responding to oil spills and hazardous substance releases, and are not otherwise negligent.

There is no doubt that parties will be dealing with the effects of these severe storms for a long time to come. The ramifications of hazardous material releases will be among the hurricanes' legacies. While new law may be made in the course of sorting out responsibility for addressing the aftermath of Hurricanes Harvey and Irma, parties should shore up their plans for contending with future natural disasters or other natural phenomena. This will either serve to prevent hazardous material releases come the next major storm event or help demonstrate that the damage was truly an act of God.