26 Rev. Litig. 155

The Act of God Defense: Why Hurricane Katrina & Noah's Flood Don't Qualify

Casey P. Kaplan

Mr. Kaplan uses Hurricane Katrina to explore the extent to which so-called Acts of God serve as a defense to liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Oil Polution Act (OPA), and the Clean Water Act (CWA). He believes that the defense should be eliminated because of past jurisprudence and the focus of environmental statutes on strict liability. CERCLA and the OPA define an Act of God as “an unanticipated 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 of foresight.” The CWA defines an Act of God as “an Act occasioned by an unanticipated grave natural disaster.” However, the federal agencies responsible for enforcing these statutes have failed to provide guidance in applying these definitions. The jurisprudence centers around four factors that courts will look to in determining whether a storm constitutes an Act of God: (1) the natural phenomenon must have been a storm of exceptional, inevitable, or irresistible character; (2) the storm must have been unanticipated and the effects of the storm must not have been foreseeable; (3) the storm must have been the sole cause of the toxic release; and (4) the harm must not have been prevented by the exercise of due care. Even a storm as powerful and dangerous as Hurricane Katrina would fail to meet this test because of the foreseeability of the magnitude of the storm and the foreseeability of the damage. If the Act of God defense cannot be invoked with respect to a storm as catastrophic as Hurricane Katrina, Congress should eliminate the exception entirely or the appropriate agencies need to provide some meaningful guidelines in determining what constitutes an Act of God.


“For my part, I am about to bring the flood—waters upon the earth—to destroy all flesh under the sky in which there is a breath of life; everything on earth shall perish.” I. INTRODUCTION Hurricane Katrina was one of the most destructive natural disasters to occur in the United States and likely the most expensive. Insurance groups estimate the event will ultimately result in insured losses between $40 and $60 billion. Hurricanes Katrina and Rita destroyed 115 oil and gas platforms and damaged another fifty two platforms and 183 pipelines. As of late January of this year, “twenty five percent of oil production in the Gulf remains down . . . .” Hurricane Katrina was initially identified as a tropical storm in the Bahamas. Tracking across Florida on August 25 as a Category 1 hurricane, Katrina re entered the Gulf of Mexico where it intensified to a massive Category 5 storm before making landfall on the Gulf Coast. In all, Katrina continued for “nine days from its inception as a tropical depression on August 23 to its dissipation over Canada on August 31.” As the center of the storm moved across Louisiana, a storm surge, exacerbated by eastern winds, pushed through to Lake Pontchartrain. The surge breached the levees designed to protect the bowl of New Orleans and caused several to erode and fail. The lake water poured into the city, filling it up to the rooftops in some areas. Although hurricanes are nothing new to the Gulf Coast, Hurricane Katrina was in a class of its own, killing more people than any storm other than the Galveston Hurricane of 1900 and the Lake Okeechobee Hurricane of 1928 that struck Florida. The unstoppable nature and magnitude of these storms seems to describe aptly what are commonly called acts of God. The purpose of this Note is to explore the extent to which so called acts serve as a defense to liability under three federal environmental statutes: the Comprehensive Environmental Response, Compensation, and Liability Act (hereinafter CERCLA or Superfund); the Oil Pollution Act (OPA); and the Clean Water Act (CWA). Polluters may avoid liability by appealing to an “Act of God” defense, if they can prove a toxic spill was caused by an unanticipated extreme natural disaster, the effects of which could not have been prevented by the polluters. Although the Act of God defense has only been argued a handful of times, in each case the court has held that the triggering event was not an act of God. But the defense has never been asserted after a catastrophe the size of Hurricane Katrina. This Note argues that the Act of God defense is incongruous with the purpose of environmental statutes such as CERCLA, the Oil Pollution Act, and the Clean Water Act. This is true even though Congress designed those environmental statutes by exploring and utilizing long used common law language in the exceptions sections. Although clarifying the Act of God defense for courts is important, a more practical measure would be to eliminate the defense altogether. Hurricane Katrina litigation will ultimately provide courts with the perfect test case: if there was ever a storm that qualified as an Act of God under the environmental statutes, Katrina is surely it. Yet, given past jurisprudence, the focus of the environmental statutes on strict liability, and the courts’ reliance on agency expertise, it seems this storm will be one further example of what does not constitute an Act of God. This Note begins with an overview of the key federal environmental statutes that include the Act of God defense. It then analyzes how the defense has been interpreted by the courts under each statute and how a court might apply the defense to suits following Hurricane Katrina specifically. Finally, this Note offers a way out of the muddy waters of interpretation and application surrounding the Act of God defense by recommending the defense’s full removal from strict liability environmental statutes. II. OVERVIEW OF THE KEY FEDERAL ENVIRONMENTAL STATUTES There are three major federal environmental statutes that have been enacted and amended over a period of more than twenty years. These statutes are the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); the Clean Water Act; and the newest statute, the Federal Oil Pollution Act of 1990. Each of the three statutes effectively operates to cover the spectrum of possible environmental responses to toxic spills. CERCLA, enacted in December of 1980, authorizes the federal government to respond to spills and other releases (or threatened releases) of hazardous substances, as well as to leaking hazardous waste dumps. The purpose of the Clean Water Act is to control pollutants in effluent discharged from a facility by virtually any means into almost any stream or body of water. The Oil Pollution Act was enacted to expand prevention and preparedness activities, improve response capabilities, ensure that shippers and oil companies pay the costs of spills that do occur, and establish an expanded research program. The primary focus of the Oil Pollution Act is to prepare and to respond to accidents involving a discharge of oil. The enactment of the Oil Pollution Act ensured that oil spills were specifically covered, in case the Clean Water Act could not be applied. CERCLA’s intent is to cover all discharges, provided the discharge specifics would permit application of the Clean Water Act. Each statute is discussed in more detail below, with the aim of clarifying how each may be applied and defended against. A. The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) On December 11, 1980, Congress enacted The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). CERCLA taxes chemical and petroleum industries and authorizes the Federal government to respond to releases or threatened releases of potentially hazardous substances that may endanger the public health or well being. Specifically, “CERCLA established prohibitions and requirements concerning closed and abandoned hazardous waste sites, provided for liability of persons responsible for releases of hazardous waste at these sites; and established a trust fund to provide for cleanup when no responsible party could be identified.” The Environmental Protection Agency (“EPA”) administers CERCLA. Two separate response actions may be taken by the EPA: “short term removals, where actions may be taken to address releases or threatened releases requiring prompt response” and “long term remedial response actions, that permanently and significantly reduce the dangers associated with releases or threats of releases of hazardous substances that are serious, but not immediately life threatening.” One of the key aspects of CERCLA is how it is utilized by courts. For example, according to one court, CERCLA should be construed liberally to effectuate its goals. What interpretative approach is taken proves critical for determining which parties a court is likely to hold responsible for the cost of cleaning up environmental hazards. B. The Federal Oil Pollution Act (OPA) The Oil Pollution Act (OPA) was signed into law in August 1990, largely in response to rising public concern following the Exxon Valdez incident. The OPA improved the nation’s ability to prevent and respond to oil spills by establishing provisions that expand the federal government’s ability, and provide the money and resources necessary, to respond to oil spills. The OPA also created the national Oil Spill Liability Trust Fund, which is available to provide up to one billion dollars per spill incident. In addition, the OPA provided new requirements for contingency planning both by government and industry: The National Oil and Hazardous Substances Pollution Contingency Plan (NCP) has been expanded in a three tiered approach: the Federal government is required to direct all public and private response efforts for certain types of spill events; Area Committees—composed of federal, state, and local government officials—must develop detailed, location specific Area Contingency Plans; and owners or operators of vessels and certain facilities that pose a serious threat to the environment must prepare their own Facility Response Plans. Finally, the OPA increased penalties for regulatory noncompliance, broadened the response and enforcement authorities of the Federal government, and preserved State authority to establish law governing oil spill prevention and response. C. The Federal Clean Water Act (CWA) The Clean Water Act of 1972 is the principal federal statute protecting navigable waters and adjoining shorelines from pollution. The Clean Water Act has served as the foundation for regulations regarding pollution prevention and response measures. Specifically, Section 311 of the CWA addresses oil and hazardous substance releases and any resulting pollution, giving the EPA and the U.S. Coast Guard authority to establish mechanisms for preventing, preparing for, and responding to oil spills that occur in navigable waters of the United States. Furthermore, the EPA implements provisions of the Clean Water Act “through a variety of regulations, including the National Contingency Plan and the Oil Pollution Prevention regulations.” III. OVERVIEW OF POLLUTION/SPILLS STEMMING FROM HURRICANE KATRINA What follows is an overview of the major results of Hurricane Katrina, including the toxic spills that polluted a substantial portion of land and water, the immediate impact on the city of New Orleans, and the pending litigation stemming from those spills. Addressing the environmental and legal impact of Hurricane Katrina will provide a context for the analysis of the Act of God defense in Parts IV and V. A. Seven Major Spills Resulting in a Polluted Area Two thirds the Area Affected by the Exxon Valdez In southern Louisiana, there were seven major oil spills from refineries or tank farms. These spills totaled 6.7 million gallons and covered most of the region. In terms of gallons the spills equaled almost two thirds of the 11 million gallons that leaked into Alaska’s Prince William Sound from the Exxon Valdez in 1989. The 6.7 million gallon total does not include the gasoline from gas stations and the more than 300,000 flooded cars, which were likely to add another one million to two million gallons. It also does not include the oil from hundreds of smaller or undiscovered spills. The hurricane’s magnitude became evident when labs began testing soil samples and found there was too much petroleum in the dirt to test for anything else. But petroleum was not the only hazardous substance released into the environment. Crews have discovered close to “466 industrial facilities that had highly dangerous chemicals before the storm” throughout the Gulf Coast hurricane area. The Exxon Valdez disaster involved cleanup efforts costing more than $1.25 billion in 1989. Cleanup costs from Hurricane Katrina related spills will likely cost considerably more, given that the spills occurred across population centers in Louisiana, as opposed to a mostly unpopulated coastline in Alaska. B. Environmental Impact on City of New Orleans Close to 80% of St. Bernard Parish’s properties in the New Orleans area were polluted from oil in the flood waters. In parts, where oil penetrated the ground fully, officials estimated that as many as 4,000 homes will be torn down and two to three feet of soil will be removed from the area. During the flood, the water washed out gasoline tanks, oil tanks floated and cracked, and a large amount of oil contaminated the flood waters. Sewage systems were flooded, and two major landfills leached material into the waters. The health hazards created by polluted flood waters motivated officials to call for a mandatory evacuation of New Orleans and the surrounding areas. Given the extraordinary potential for major hazardous releases, the Environmental Protection Agency began its own investigations. The EPA visited four Superfund toxic waste sites near New Orleans, where they looked for damage and potential chemical releases. Investigations are ongoing. Another Superfund site, the Agriculture Street landfill in eastern New Orleans, is one location where potential toxic releases could have occurred. Low income housing and a school were built on or near the waste years ago, and this area stayed under water long after the storm. One of the biggest disaster areas and the focus of a large class action lawsuit is the site of Murphy Oil USA, Inc. and the surrounding neighborhoods. According to the Environmental Protection Agency, one of Murphy’s “250,000 barrel above ground storage tank[s] was dislodged, lifted and damaged” during the flooding of Katrina. This resulted in a release of over one million gallons of crude oil that affected 1,700 homes in a one square mile area. There is still debate on whether the area is free from dangerous toxic contamination. C. Discussion of Current Pending Litigation from Katrina Several law suits have already been filed against major oil and gas companies that polluted the New Orleans water when Hurricane Katrina struck. A federal judge in Louisiana has certified, as a single class action, twenty seven lawsuits filed on behalf of several thousand people whose homes and businesses were damaged by an oil spill resulting from Hurricane Katrina. The lawsuits say a 250,000 barrel oil tank owned by Murphy Oil USA, Inc. ruptured and the oil spilled into the neighborhoods adjacent to the Murphy refinery in St. Bernard Parish, La. The plaintiffs allege Murphy was negligent in failing to have safeguards in place before the approaching hurricane. Plaintiffs are homeowners and residents in the area near the oil refinery, and they have brought a variety of claims for property damage and personal injury resulting from the discharge. Oil companies involved in these lawsuits may argue they are entitled to use the common law Act of God defense to negligence, which is an easier standard to meet than the Act of God defense under the regulatory statutes. An Act of God is defined by the Restatement of Torts as “[a]n intervening operation of a force of nature, without which the other’s harm would not have resulted from the actor’s negligent conduct.” Such an act “prevents the actor from being liable for the harm, if (a) the operation of the force of nature is extraordinary, and (b) the harm resulting from it is of a kind different from that the likelihood of which made the actor’s conduct negligent.” Something courts will likely consider in the Katrina suits is the ability of a party to employ an Act of God defense against common law, strict liability torts. The common law states that “[o]ne carrying on an abnormally dangerous activity is subject to strict liability for the resulting harm although it is caused by the unexpectable . . . . (c) operation of a force of nature.” Although the oil companies are actively involved in the cleanup efforts, the Environmental Protection Agency is also engaged in efforts to clean the region of the spills, specifically from Murphy Oil. It is still unclear if the EPA will seek contribution from Potential Responsible Parties (PRPs) through future litigation or administrative efforts, but it seems likely they will. There are also four other groups of lawsuits that have been filed in the wake of Hurricane Katrina: “[s]everal commercial fishermen’s groups, including the United Commercial Fishermen’s Association and the Louisiana Shrimp Association, are pursuing a class action lawsuit against oil and gas companies in south Louisiana.” The suit alleges that releases from oil companies during and after the hurricane have destroyed oyster beds and fishing waters around the Gulf Coast. Another suit involves more than a dozen major oil and gas producers and alleges that drilling and pipeline activities in southeast Louisiana caused the destruction of marshes. The suit suggests that those marshes would have limited hurricane damage to New Orleans. The Army Corps of Engineers has been sued over two different issues. The first concerns the breach of the levees and alleged design defects. The second issue concerns a “66 mile channel, which was dug in the late 1950s through St. Bernard and Plaquemines parishes to create a shortcut for ships traveling to New Orleans, [and made] flooding worse in those parishes.” IV. THE ACT OF GOD DEFENSE UNDER FEDERAL STATUTES A. CERCLA The Comprehensive Environmental Response, Compensation and Liability Act lists the defenses that may be asserted by PRPs in a cost recovery action as an act of God, act of war, or act of a third party. Specifically, CERCLA provides that if the “release or threat of release of a hazardous substance and the damages resulting therefrom” is caused solely by an act of God, there is no liability. CERCLA’s definition of an “Act of God” is 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.” Three cases illustrate the unsuccessful arguments that defendants have made to employ the Act of God defense under CERCLA. 1. United States v. Barrier Industries In United States v. Barrier Industries, the United States sought to recover (under CERCLA) all response costs expended by the Environmental Protection Agency in cleaning up a former site owned by Barrier Industries, Inc. Barrier Industries attempted to use the Act of God defense, claiming that hazardous spills caused by the bursting of pipes was “occasioned by an unprecedented cold spell.” The court reiterated the definition of an Act of God under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980: an Act of God is “an unanticipated 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.” The court emphasized that the defense would only be applicable if the release or threatened release of hazardous substances was caused “solely” by an act of God. The court relied on evidence from the government that “numerous other factors antedating the cold weather . . . causally contributed to the problems at the Barrier site.” The court, however, did not relate any other specific piece of evidence before coming to this conclusion and thus failed to give a clear picture of what type of disaster would qualify as an Act of God. The court relied instead on disqualifying factors, thereby evading an opportunity to define an Act of God positively. 2. United States v. Stringfellow The decision in United States v. Stringfellow includes a more thorough analysis of the Act of God defense under CERCLA. In this case, the United States sued the owners and operators of a toxic waste disposal site called Stringfellow, the generators of waste at the Stringfellow site, and the transporters of waste in response to releases and threats of release of hazardous substances. Defendants attributed the problem to heavy rainfall, but the court concluded that heavy rainfall was “not the kind of exceptional natural phenomenon” to which the “act of God exception applies.” The United States brought suit against the Stringfellow polluters in order to recover a portion of the costs of remediating the site of the environmental cleanup under CERCLA, as well as the Clean Water Act and the Resource Recovery and Conservation Act. The defendants attempted to use the Act of God defense as an affirmative defense against liability for the cost of remediation. The court in this case again emphasized the “sole cause” qualifier and concluded that the affirmative Act of God defense was not available to the plaintiffs. The court also addressed the nature of the claimed Act of God. The court stated: The defendants contend that the heavy rainfall in 1969 and 1979 was a natural disaster which constituted an act of God. However, the Court finds that the rains were not the kind of exceptional natural phenomena to which the narrow act of God defense of section 107(b)(1) applies. The rains were foreseeable based on normal climatic conditions and any harm caused by the rain could have been prevented through design of proper drainage channels. The court engaged in a comparative fault analysis and found the defendant’s actions or inactions to be a causal factor in the incident. The defense, therefore, failed on every requirement. But its analysis the court set up a useful test that, if employed consistently, could at the very least provide slightly more guidance in the use of the defense by PRPs. 3. United States v. Alcan Aluminum Corp. In United States v. Alcan Aluminum Corp., the defendant attempted to avoid liability from an oil spill that Alcan claimed would not have occurred except for the impact of Hurricane Gloria. The primary question the court addressed did not involve the Act of God defense. Alcan did, however, move for summary judgment on the grounds that any releases were the sole result of Hurricane Gloria and therefore should be denied under the Act of God defense. This case illustrates how even in pre trial motions, courts are hesitant to allow use of the defense. In the late 1970s, Alcan Aluminum dumped approximately 2 million gallons of oily wastes containing hazardous substances down an air shaft leading to a network of coal mines and related tunnels, caverns, pools, and waterways. These waterways and tunnels bordered the east bank of the Susquehanna River in Pittston. Pennsylvania Butler Tunnel drains those mine workings and then discharges directly into the Susquehanna River. When Hurricane Gloria flooded surrounding areas, approximately 100,000 gallons of oily waste were discharged from the Butler Tunnel into the Susquehanna River. In moving for summary judgment, Alcan contended that the release of the waste occurred in connection with the torrential downpour of rain associated with the hurricane. The court concluded once again that a heavy downpour of rain does not qualify as the kind of “exceptional natural phenomenon to which the Act of God exception applies.” Alcan, however, urged the court to consider their position that it was not the heavy downpour that was the Act of God, but rather the hurricane itself. Alcan argued that not only should a hurricane of the magnitude of Hurricane Gloria qualify, but that it should also be considered an Act of God because the event was unanticipated as far north and inland as Pennsylvania. The court rejected this argument for three reasons. First, the court addressed the sole cause factor included in the defense and stated that no reasonable fact finder could conclude that Hurricane Gloria was the sole cause of the release and resulting response costs. The court reasoned that had Alcan not engaged in illegal dumping, Hurricane Gloria’s impact would not have resulted in the release of the toxic waste into the river. This argument illustrates, once again, the judiciary’s reliance on the “sole cause” qualifier. Second, and closely related, the court concluded that the damage from Hurricane Gloria could have been prevented or avoided by the exercise of due care. The court returned once more to the “sole cause” distinction and reiterated that if Alcan had not dumped the waste, the environmental disaster would not have occurred. Finally, the court, continuing to rely on the Stringfellow court’s position, ignored Alcan’s defense by holding that heavy rainfall is not the kind of exceptional natural phenomenon to which the Act of God defense applies. The Alcan and Stringfellow decisions are noteworthy for their focus on the typical activities of the storm itself, rather than on the atypical classification of the storm as a “hurricane.” Alcan also provides of another example where the court declined to give a positive definition of an Act of God. B. The Oil Pollution Act The Oil Pollution Act provides for the same three defenses as CERCLA to the imposition of liability for removal costs and damages. These are the Act of God defense, the Act of War defense, and the Third Party defense. The Oil Pollution Act’s definition of an Act of God is identical to CERCLA’s definition of the term. The Oil Pollution Act further provides that the defense is available only if the discharge of oil—or substantial threat of a discharge of oil— and the resulting damages or removal costs were caused solely by the act of God. The only case in which a polluter has attempted to employ the Act of God defense under the Oil Pollution Act is Apex Oil Company v. United States. 1. Apex Oil Company v. United States In Apex Oil v. United States, Apex filed suit appealing the denial of its claim for reimbursement of oil spill cleanup costs under the Oil Pollution Act of 1990. Specifically, Apex alleged the denial of their claim by the United States under 33 U.S.C. §§ 2703, 2708(a)(1), was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Both parties moved for summary judgment. In this case, on June 16, 1995, a series of Apex barges towed by the M/V SONDRA B collided with the Vicksburg Highway 80 Bridge, resulting in the discharge of slurry oil into the Lower Mississippi River by two of the barges. At the time of the collision the M/V SONDRA B was moving north (upstream) with seven barges in tow. “The port side of the tow consisted of four barges (three loaded with slurry oil), the starboard side was made up of the three empties, with only a single port side barge faced up to the pushboat SONDRA B.” The collision caused extensive damage, and the discharge of slurry oil into the Lower Mississippi River totaled approximately 840,000 gallons. Apex moved for summary judgment, attempted to utilize the Act of God defense under the Oil Pollution Act, and claimed that the National Pollution Fund Center should reimburse Apex for cleanup costs. The court looked to legislative intent to determine whether the Act of God defense applied. The court stated: Congressional intent is clearly that the “exceptional natural phenomenon” (i.e., the “Act of God”) defense on a claim for reimbursement by the Oil Spill Liability Trust Fund be construed as much more limited in scope than the traditional common law “Act of God” defense. The discharger’s burden of proof on the defense of “exceptional natural phenomena” is much more onerous than that required for common law or traditional “Act of God” defense. The court relied on the CERCLA definition, as it is identical to the one in the Oil Pollution Act, and then looked at the legislative history of CERCLA. The legislative history of CERCLA includes the following explanation regarding the singular “defense for exceptional natural phenomena”: The defense for the exceptional natural phenomenon is similar to, but more limited in scope than, the traditional ‘act of God’ defense. It has three elements: the natural phenomenon must be exceptional, inevitable, and irresistible. Proof of all three elements is required for successful assertion of the defense. The ‘act of God’ defense is more nebulous, and many occurrences asserted as ‘acts of God’ would not qualify as ‘exceptional natural phenomenon.’ For example, a major hurricane may be an ‘act of God,’ but in an area (and at a time) where a hurricane should not be unexpected, it would not qualify as a ‘phenomenon of exceptional character.’ The court held that the Act of God defense was clearly inapplicable in this case. The court emphatically stated the underlying principle that permeates most jurisprudence surrounding the use of this defense, “Apex has failed to cite one case which supports its interpretation of the OPA’s Act of God defense as setting forth the tortured bifurcated standard it foists upon the language, emasculating its most salient theme—strict liability for the responsible party.” This singular comment underscores most courts’ reluctance in allowing the Act of God defense to be utilized by a defendant as well as courts’ lack of clarity in suggesting what might qualify as an Act of God. C. The Clean Water Act The Clean Water Act also imposes liability for spills. The “Act of God” claim can be a defense to liability. The Clean Water Act was enacted by Congress before both the Oil Pollution Act and CERCLA and uses a different definition for an Act of God, stating that an Act of God is “an act occasioned by an unanticipated grave natural disaster.” Again, only one case—Liberian Poplar Transports, Inc. v. United States—even includes a discussion on the Act of God defense and, as in the previous cases, the court struck down a polluter’s attempt to use the defense. 1. Liberian Poplar Transports, Inc. v. United States In this case, a transport company, Liberian Poplar, sought reimbursement from the United States under the Clean Water Act (Act), 33 U.S.C. § 1321(i), for costs to clean up oil leaked from a vessel owned by the transport company. The United States sought summary judgment. In regards to the Act of God defense, the transport company contended that the cause of the spill was a storm, claiming it was an Act of God and an exception to liability under the Clean Water Act. Liberian Poplar Transports, Inc., is the owner of the M/V World Radiance (World Radiance). On November 20, 1989, the World Radiance was transferring oil at the Chevron Hog Island facility in Philadelphia, Pennsylvania. Liberian Poplar alleged that the captain of the World Radiance had “checked the weather conditions on the radio prior to commencing transfer operations and had found no reports of severe weather.” Shortly thereafter, the National Weather Service issued a Severe Thunderstorm Warning that included the area of the Chevron Hog Island facility, but the crew of the World Radiance had not monitored the radio for weather conditions since the transfer began. However, Liberian Poplar contended that the sailor on watch observed no sign of the impending storm until it was immediately upon them. Because of the storm’s sudden onset, the plaintiff maintained that the crew was unaware of the storm until it virtually was upon them and by 9:30 p.m. winds of 40 knots were observed by the National Weather Service. At that time, the winds associated with the storm caused the World Radiance’s mooring lines to part, “pushing the vessel away from the pier,” and “100 barrels of oil were dumped into the Delaware River.” The United States Coast Guard ordered Liberian Poplar to clean up the oil in the Delaware River. Liberian Poplar contended that “because the storm was not well forecasted, and was not visually foreseeable by the ship’s watch, that the storm was not anticipated.” The court reasoned, however, that the test for determining anticipation, as set out by the statute, is objective. The court, in its analysis, declined to allow the plaintiff to rely on “degrees of anticipation.” Instead, the court pointed out that the plaintiffs were warned, however late, and therefore the storm did not qualify as an Act of God under the Clean Water Act. This was an especially important fact in the court’s reasoning, as the opinion suggests that time related to warning matters little in determining liability under the Clean Water Act. The court’s opinion relies on the fact that there was some warning—regardless of how close in time to the actual event and regardless of how specific. Accordingly, the storm fails to qualify as an Act of God, and Liberian Poplar was prohibited from utilizing this as a defense. V. TESTING THE JUDICIAL DEFINITION OF ACT OF GOD It is important to notice how, in each case where courts utilized the definition of an Act of God, the event was only defined in the negative (i.e. what is not an Act of God). If the Act of God defense is to have meaning (assuming Congress intended to give it meaning by inserting the language into the environmental statutes), it is critical to define positively what an Act of God is. Only by articulating a concrete, yet flexible, judicial test for an Act of God defense is this possible. A. The Act of God Test—Setting Defendants up to Fail By reviewing the cases under each of the three statutes discussed above, the factors relevant for applying the Act of God defense emerge. At the same time, close scrutiny also reveals that courts make it nearly impossible for a defendant to successfully utilize the defense. This critical problem with courts’ jurisprudence on the subject is discussed more fully below. The elements of the test are loosely set forth in Stringfellow. First, a court will determine to what extent a natural phenomenon, in this case a hurricane, would qualify as a storm of exceptional, inevitable, or irresistible character. Second, the storm must also have been unanticipated and the effects of the hurricane must not have been foreseeable. Third, the court will determine if the storm was the sole cause of the toxic release. Finally, the court will review the facts to see if the harm could have been prevented by due care of the PRP. Failing any one prong of the test ensures the defense may not be used. The few courts that have delivered opinions involving the Act of God defense, have been reluctant to qualify most natural phenomena as having exceptional, inevitable, or irresistible character. First, it is important to note that this prong of the test relates solely to the character of the storm, or the “Act” in question. As discussed in Apex Oil Co. v. United States, the court held that defendant’s burden of proving this type of character is onerous. As was seen in virtually every case where the defense has been asserted, courts are hesitant to allow a natural phenomenon “exceptional character” status. Courts are also unenthusiastic about allowing a defendant to claim the storm was not unanticipated and therefore that the effects were unforeseeable. This prong of the test is a blended analysis. Courts must look at the unanticipated nature of the storm (the “Act”), as well as the actions of the PRP, and determine if the ultimate damage was foreseeable. Stringfellow shows that courts will look toward normal climatic conditions to determine if certain natural phenomena were anticipated or not. In another case, a district court looked to a more immediate anticipation test: the National Weather Service. If PRPs have to rely on a storm not being part of normal climatic conditions or predicted by the National Weather Service, given scientific understanding as well as technological advances, it is hard to imagine any defendant being able to pass this prong of the test. If a storm is deemed anticipated, the analysis can stop, as the defense will fail when only one prong of the test fails. However, if a storm is classified as unanticipated, which would only occur in the rarest of situations, the question becomes whether the lack of anticipation automatically means the damage was not foreseeable. For example, if an oil company is expected to plan for all potential calamities—even a storm whose character and ferocity is not anticipated—then it would be impossible for that oil company to protect itself from the storm’s damage. That fact is what ties these two pieces of the analysis together. Unfortunately for PRPs, courts would not even have to analyze the foreseeability component if the storm was deemed to be anticipated. The third prong of the test involves a determination of whether the storm was the sole cause of the release of toxic materials. This prong also requires a blended analysis of the nature of the storm (“Act”) in question and the acts of the defendants. It must first be determined whether the storm caused the damage at all, and then whether the storm was the sole cause of the damage. Three different cases discussed above illustrate how courts evaluate this prong. The courts in Stringfellow, Alcan, and Barrier Industries all held that the natural phenomenon in question was not the sole cause of the release. From a specific determination that a faulty drain system also caused the release to a more general conclusion that “numerous other factors antedating the cold weather” contributed to the release, courts have wide latitude in making the sole cause determination. Again, the lack of specificity or judicial rubric in applying this prong of the test ensures that polluters are set up to fail. Finally, courts have evaluated the due care prong of the test only slightly more generously. This prong of the test requires a court only to look at the actions of the PRP. If due care would have prevented the release, the Act of God defense will not apply. In the cases discussed, the courts generally looked for some physical action taken by a defendant that caused them to fail the due care prong. In one way or another, the defendants put themselves in the direct path of destruction. The question then arose as to whether, for example, battening down the hatches is enough to pass the due care prong of the test or if the defendant should have done more prior to the natural disaster. This leaves a PRP in a defenseless position because courts are free to move back the moment when due care is measured. Courts are free to suggest that physical action taken by the PRP at any point in time leading up to the natural disaster contributed to the toxic release and, therefore, that the PRP violated the due care prong. B. Applying the Test to Hurricane Katrina Hurricane Katrina would likely pass the first prong of the Act of God test and qualify as a natural occurring phenomenon of exceptional, inevitable, and irresistible character. If ever there was a hypothetical that a court would be willing to describe in a case, it would have to be similar to Hurricane Katrina. Katrina, labeled a “Super Cat,” as in “super category,” by meteorologist groups, was as powerful, destructive and “God like” as imaginable. Few people would dispute that. However, looking at each of the other prongs is when the entire defense, once again, falls apart. On two different levels Hurricane Katrina was an anticipated natural disaster and therefore, its effects were foreseeable. First, looking at the anticipation on a short term level, every possible forecasting model had Hurricane Katrina heading right for the Gulf Coast, at least certainly after the storm crossed the Florida peninsula and re entered the Gulf. Second, looking at anticipation on a long term level, scientists, meteorologists, and other forecasters have predicted a Super Cat like Katrina would eventually strike the United States, and the region along the coast of Louisiana was specifically designated as especially vulnerable. The sole cause prong of the test also sets defendants up to fail. Already, suits have emerged accusing the same oil and gas companies that had hazardous releases as a result of Hurricane Katrina, of actually causing the hurricane in the first place. One lawsuit has a group suing several oil companies for damages to wetlands that allegedly would have softened Hurricane Katrina’s blow. These types of suits allege that “drilling and pipeline activities in southeast Louisiana caused the destruction of marshes that would have limited hurricane damage to New Orleans.” Finally, courts will have to determine whether the defendants in any litigation under the environmental statutes could have prevented the release by exercising due care. In reviewing the cases where the courts have analyzed that issue, the statutes themselves and legislative history, it becomes clear that this may be the toughest hurdle for PRPs in a lawsuit. Although it appears difficult to satisfy the due care prong, the jurisprudence suggests that if the defendants took no active step in the resulting damage from the natural disaster, then the PRP may satisfy this prong. This suggests, however, that courts will only look to any active move the defendants may have taken, as they did in Santa Clara, Alcan and others. Courts could easily do the opposite and say that because no positive action was taken to prevent the harmful releases on the part of the defendants, those PRPs should fail the due care prong of the test. VI. CONCLUSION It is time to throw the defense out with the flood water. The three relevant statutes, CERCLA, the CWA, and the OPA, all define (to some extent) what an Act of God is. Courts, however, have failed to apply the definition in a way that might designate what an Act of God actually looks like. Although it is not necessarily the courts’ full responsibility to create a hypothetical of what an Act of God might look like, the failure of Congress to be more specific in the statutes has forced the courts into a position where they must act. The courts have to give deference to agency interpretations of statutes. At the same time, it does not behoove agencies to define any natural occurrence as an Act of God and allow polluters to escape liability. If they did, then the federal government would have to bear the entire cost of a cleanup. The truth is clear throughout the statutes: the federal government, in designing CERCLA, CWA, and the OPA, wanted to design air tight strict liability statutes. It is clear from the cases, from the legislative history, and from the commentary that the federal government never envisioned an Act of God that would qualify for an exemption under the liability sections of these statutes; strict liability is the “most salient theme” in each statute. So where does that leave the courts? The cases involving Hurricane Katrina and the ensuing environmental disasters that resulted will be the biggest tests for the courts on the Act of God defense. However, it seems unlikely that a court will do this. Courts, like agencies and like the federal government, want to impose liability on polluters. The problem is that once the court strikes down the Act of God defense in the Katrina litigation, the defense becomes the toothless tiger that scares no one, especially the EPA. In reality, the time has come to retire the defense. Congress should step up and revise the statutes and eliminate the defense. Congress should take the approach that the common law takes under strict liability torts. The common law understands that liability exemptions, however rare, ultimately clash with principles of strict liability. Congress should openly adopt this understanding. In the alternative, Congress would need to put the teeth back into the defense. Congress would have to set forth guidelines for the defense, not merely a definition. Agencies would need to examine the defense in each case and at least review the possibility of its use. And courts would need more guidance, so they could review the facts of a case and apply them uniformly and fairly. Ultimately, Congress should not do this, nor should any agency be directed to do so. Congress carefully crafted three air tight strict liability statutes, and it certainly wants to keep them that way, even in the face of a Super Cat. The legislative history behind and the purpose of the environmental statutes make this point clear, as discussed above. When God came to Noah and told him a great flood would come and cover the earth, Noah had forewarning. The storm was anticipated. And if Noah had been an oil producer, he would have been expected to prepare for the impending doom, so as not to damage the environment. Such an Act of God, however, is unlikely to ever qualify as such, even if biblical stories become eventualities.
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