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Following the disaster that has unfolded in Texas as a result of the unprecedented flooding caused by Hurricane Harvey, affected businesses might be asking whether they might be able to avail themselves of the “Act of God” defense that is embodied in several federal environmental laws and the Texas Health and Safety Code. If ever an event qualified as an “Act of God,” many would likely agree that Hurricane Harvey falls into that category. However, if the experience of Hurricane Katrina provides any guidance, regulated entities are likely to face substantial hurdles triggering the “Act of God” defense for releases attributable to Hurricane Harvey.
Although not defined in the Texas Health and Safety Code, CERCLA defines an “Act of God” as the “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.” 42 U.S.C. §9601(1). The Oil Pollution Act of 1990 contains a verbatim definition of “Act of God.” 33 U.S.C. §2701(1).
One might ask how many times the “Act of God” defense has been successfully asserted, and the answer is that there is not a single reported case where that defense has been successful.
Perhaps one reason that the defense has never been successfully asserted is that it requires the natural event to have been “unanticipated” and that the effects of the natural event could “not have been prevented, or avoided by the exercise of due care and foresight.” Hurricanes in the summer in Texas are unlikely to be considered unanticipated events (even if occasioned by massive flooding), and, in fact, CERCLA’s legislative history specifically notes “[f]or 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 an “Act of God”. H.R. Rep. No. 99-253 (1977). Moreover, proving that the effect could not have been prevented or avoided also is likely to prove difficult. For example, during Hurricane Katrina, a 250,000 barrel above ground storage tank was dislodged which resulted in the release of approximately 1,000,000 gallons of crude oil. However, the responsible entity did not assert an “Act of God” defense but instead proceeded to remediate the spilled oil.
That is not to say that affected entities should not give due consideration to all potentially applicable defenses in the face of a natural disaster such as Hurricane Harvey. However, one should not turn a blind eye to the fact that reliance on an “Act of God” defense is likely to continue to face hurdles of biblical proportion.