Assuming the Worst

A criminal trial is underway in Houston against Arkema Inc. and Arkema senior level employees arising out of an explosion at Arkema’s plant during Hurricane Harvey.  Arkema is in the plastics business.  Arkema uses organic peroxides in its manufacturing process.  Organic peroxides are highly volatile and will combust if not kept at or below freezing temperatures.  When Harvey hit, the plant was flooded.  Temperatures could not be maintained at the proper level.  Several trailer storage containers ignited and emitted dangerous chemicals.  Everyone in a 1.5 mile radius had to be evacuated for a week.  Two sheriff deputies became ill.  23 people were hospitalized. Here is the kicker:  the plant is located within the known floodplain. The defense is that Harvey was an unprecedented Act of God that overwhelmed Arkema’s emergency preparedness plan. We will have to wait and see what the jury decides, but this event and many others are bringing into focus long overlooked problems arising out of building in a floodplain and the problems we are now facing due to superstorms created by climate change.  Haven’t we already seen enough of the superstorms to understand that decisions about where and how to build critical infrastructure, chemical storage, housing, factories, plants, etc. must be based upon an assumption that it is just a matter of time until the worst occurs? A story in the 2/27/20 Houston Chronicle revealed that 60% of the 257 electrical substations in Harris County are at risk of flooding at least 1 foot during extreme weather.  It is predicted that by 2030 the number of substations in Harris County experiencing 2 to 3 feet of flooding will increase by 50%. You may recall that I wrote about a federal judge’s decision to hold the U.S. Corps of Engineers liable to homeowners for flooding which occurred upstream of the Barker & Cypress Reservoirs during Hurricane Harvey.  After I wrote that blog, a different federal judge ruled that the Corps of Engineers was not liable to downstream homeowners when the Corps discharged floodwater downstream.  The federal judge in the second case issued a lengthy opinion which, in my opinion, was unduly caustic and unsympathetic to the homeowners, but the essence was the event was an Act of God and the Corps was in an impossible position. Appeals will occur in both cases. In the future, we can expect the Act of God defense to get a big workout.