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

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.1 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.2 Hurricanes Katrina and Rita destroyed 115 oil and gas platforms and damaged another fifty-two platforms and 183 pipelines.3 As of late January of this year, twenty-five percent of oil production in the Gulf remains down ... .4 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.5 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 .6 As the center of the storm moved across Louisiana, a storm surge, exacerbated by eastern winds, pushed through to Lake Pontchartrain.7 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.8 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.9 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 (hereinafter CERCLA or Superfund); the oil Pollution (OPA); and the Clean Water (CWA).10 Polluters may avoid liability by appealing to an Act of 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 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.11 But the defense has never been asserted after a catastrophe the size of Hurricane Katrina.12 This Note argues that the 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 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 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 of God. This Note begins with an overview of the key federal environmental statutes that include the 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 of God defense by recommending the defense's full removal from strict liability environmental statutes. …

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