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Tag: RighttoCompensation

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In re Katrina Canal Breaches Litigation 

Date: 18 November 2009

Court: United States District Court, Eastern District of Louisiana

Citation: 647 F. Supp. 2d 644

Short summary  

Hundreds of thousands of homes were lost in Hurricane Katrina and most homeowners’ insurance policies excluded them from compensation. This led many victims of Katrina to sue the United States government under the Federal Tort Claims Act (FTCA), alleging the U.S. Army Corps of Engineers (Corps) failed to properly maintain the Mississippi River Gulf Outlet, leading to the breach of one of New Orleans’ levees. The District Court held the U.S. was not immune from such a suit and held the Corps liable to some of the plaintiffs. This judgment was later reversed by the Fifth Circuit Court of Appeal, on the grounds that the U.S. has sovereign immunity under the FTCA from such claims. 

Summary by: David Cremins

Link to Original Judgement

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Weight of decision  

The ruling by the Eastern District of Louisiana District Court, insofar as its logic was affirmed by the Court of Appeals, holds precedential authority in the Fifth District (Texas, Louisiana, Mississippi) and persuasive authority in other U.S. Circuits (see, e.g., favourable analysis in the Northern and Central Districts of Illinois). However, this ruling has subsequently been read narrowly by the same Eastern District court (holding there must be “ample record evidence” the government neglected its duty to maintain waterways implicated in flooding).  

Key facts 

Under the Federal Tort Claims Act (FTCA; 28 USC §171), the U.S. government is immune from liability if its (in)action can be classified as a discretionary function (i.e., a policy decision left to an agency via legislation) rather than a specifically delegated ministerial duty not executed with due care.  

Under the Flood Control Act (FCA; 33 USC §702c), the U.S. government is immune from liability for damage stemming from its flood control efforts.  

The U.S. Army Corps of Engineers’ (Corps) were charged with construction, maintenance, and operation of the Mississippi River Gulf Outlet (MRGO), a navigational channel. This mandate was separate from the Corps’ efforts directed at flood control and levee construction and maintenance in southern Louisiana.  

Over decades, the Corps failed to prevent the MRGO from expanding well beyond its intended width, destroying wetlands which are protective against storm surges. This in contravention of the National Environmental Policy Act and despite repeated internal and external reports warning of the danger of not shoring up the MRGO’s banks. This failure was a substantial cause of the breach of a levee, leading to catastrophic flooding of St. Bernard parish in the New Orleans metropolitan area.  

Previous instances  

This case relies on Central Green v. United States (U.S. Supreme Court, 2001), wherein Justice Stevens held that the U.S. was not entitled to immunity under the FCA from damage caused by any and all flood waters. Instead, the government must show that flooding is connected with projects serving a primarily flood control purpose, in order for mismanagement of such projects to grant immunity.  

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Taskin and Ors. v. Turkey (2006) 42 EHRR 50

Date of judgement: 3 March 2005

Court: European Court of Human Rights

Citation(s): Application no. 46117/99, (2006) 42 EHRR 50

Short summary

The European Court of Human Rights held that environmental pollution could affect Art. 8 of the European Convention on Human Rights (right to private and family life). The Turkish Government had violated Art. 8, even if such pollution did not have serious health-related consequences.

Summary by: Makaela Fehlhaber

Link to original Judgement 

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Weight of decision

Given the jurisdiction of the Court of Human Rights, the Taskin judgement is significant and bears considerable weight.

Key facts

The applicants were residents of Bergama. In 1992, the respondent had granted permits to operate a gold mine in Ovacik, a district within Bergama. The applicants contended that as a result of the granting of these permits, they had suffered and continued to suffer the effects of environmental damage – namely the inability to move freely and noise pollution – from the use of machinery and explosives. 

Previous instances

Subsequently, the applicants sought judicial review in the Administrative Court of the Ministry of Environment’s of the decision to issue the permits on the grounds of the risks posed to human health and safety. The application was dismissed by the Court in 1996, but the provincial governor of the area agreed to suspend mining operations for one month in the subsequent year in the interests of the public. 

In 1997 the Supreme Administrative Court overturned the Administrative Court’s decision, finding that the mining activities did not serve the public interests towards health and safety measures. This was later upheld by the Administrative Court. However, irrespective of these decisions and subsequent orders, the mine reopened in an experimental capacity in 2001. 

Ten Turkish nationals lodged an application (no. 46117/99) against the Republic of Turkey to the European Commission of Human Rights in 1998 under Art. 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). The applicants contended that the actions of the respondent violated Art. 2 (right to life) and Art. 8 (right to private and family life) of the Convention. Under Art. 8, the applicants alleged that the use of cyanidation operating processes violated their right to private and family life as its uses posed a significant risk (para. 104). The applicants further stated that their judicial rights had not been upheld in accordance with Art. 6 (right to a fair trial) and Art. 13 (right to an effective remedy) of the Convention. Accordingly, they sought compensation for infringement of these rights, and for failure to enforce a judgement. 

The respondents contended that the arguments submitted in respect of Art. 8 were based on hypothetical risks that may or may not materialise. Accordingly, this could not be categorised as a serious and imminent risk (para. 107) as there needed to be a direct effect (para. 108) upon the lives of the applicants. Furthermore, the respondents submitted that Art. 8 was inapplicable as it had previously been determined that the risks of mining did not present any danger for the health of the local population (para. 9), as the government had conducted an Environmental Impact Assessment. The respondent further submitted that Art. 6 of the Convention did not apply for the same reasons (para. 128). 

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Simunek, Hastings, Tuzilova and Prochazka v. The Czech Republic, Communication No. 516/1992, U.N. Doc. CCPR/C/54/D/516/1992 (1995)

Date of judgement: 31 July 1995

Court: United Nations Human Rights Committee

Citation(s): Communication No. 516/1992, U.N. Doc. CCPR/C/54/D/516/1992 (1995)

Short summary 

This decision of the United Nations Human Rights Committee Violation of Article 26 ICCPR; OHCHR decision on Czech law requiring citizenship as a necessary condition for restitution of confiscated property.

Summary by: Yusuf Lahham

Link to original judgement 

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Weight of decision 

This case concerns the Czech Republic, a signatory of the Optional Protocol of the International Covenant on Civil and Political Rights, thus the ruling is legally binding in the sphere of International Law.

Key facts

The applicants, Alina Simunek (a Polish citizen) and Jaroslav Simunek (a Czech citizen), were forced to leave former Czechoslovakia in 1987 due to the actions of the security forces of the Communist regime. 

In 1990, following the fall of the Communist government, both applicants returned to the country in order to reacquire their property through the regulations that had been put in place for returning Czech citizens. However, the applicants were informed that between 1989 and 1990, their property had been auctioned and sold by the District National Committee (DNC) of Jablonece. Whilst some items had been destroyed, the real estate was transferred to Mr Simunek’s employer, the Sklarny factory in Jablonece. 

Previous instances 

An arbitration hearing was arranged between the applicants and representatives of the factory after a complaint was lodged against the DNC. However, the latter’s representatives argued that the transfer of real estate had not been conducted illegally. The applicants then requested an investigation by the district public prosecutor on the grounds that the transfer of property had taken place without court proceedings or a court order. An investigation was launched, and a report was produced in November 1990. It asserted that there had been no violation of the relevant regulations and that the applicants’ claims should be dismissed. 

In February 1991, the regulations were amended by Act 87/1991, which set out the conditions for returning Czech citizens to be entitled to restitution. Section 3(1) of the Act stated that those with State-seized property were only entitled to restitution if they were both citizens of the Czech and Slovak Federal Republic, and permanent residents in its territory. Other sections of the Act set out that where a property is illegally possessed and the claimant requests restitution, the burden of proof would be with the applicant to show that there was a valid claim to the property, and to prove how the property was turned over to the State. 

The Act stipulated that a request for restitution had to be submitted within 6 months of the entry into force of the Act, and failure to do so meant that the claim could be submitted to a tribunal within one year of the date of entry into force of the Act.

The applicants had not submitted a claim for restitution to the local courts as required by the Act, because due to Alina Simunek’s Polish citizenship, they did not fulfil the citizenship and residency requirements set out in Section 3(1).

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THE TRAIL SMELTER ARBITRATION CASE (UNITED STATES VS CANADA)

Date of judgement: 16 April 1938 and 11 March 1941

Citation(s): UN REPORTS OF INTERNATIONAL ARBITRAL AWARDS, Trail Smelter case (USA v. Canada), 16. April 1938 and 11. March 1941, Volume III pp. 1905-1982

Short summary 

This arbitration case between the United States (U.S.) and Canada is the foundational decision for the development of the prohibition of significant transboundary environmental damage in international environmental law. 

Summary by: Robert Los

Link to original judgement 

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Weight of decision 

The decision(s) of the Arbitrational Tribunal continue to bear immense weight in the realm of international law.  

Key facts

A zinc and lead smelter operating since 1896 in the Canadian town of Trail in British Columbia, located 16 km from the U.S. border, became the subject of dispute in this case. 

Between 1925 and 1927, two smokestacks were added to the plant. This caused an increase in pollutant emissions, specifically a doubling of sulfur dioxide. This reached U.S. soil in the form of “acid rain” and caused crop failures and damage in the Columbia River Valley (Washington State). Between 1927 and 1935, the U.S. government protested to the Canadian government regarding this damage to the Columbia River Valley. 

In 1928, both governments commissioned the International Joint Commission by the United States and Canada to conduct arbitration proceedings. The Commission submitted its final report in 1931, which proposed that the Canadian government pay damages of $350,000 USD for the damage caused, and that emissions from the Trail plant be limited. 

Canada paid the damages. However, no improvements were seen with regard to pollutant emissions, and the conflict began again. For this reason, in 1935 the Convention for Settlement of Difficulties Arising from Operation of Smelter at Trail, B.C., was signed, and the parties agreed to have the following questions settled by arbitration:

1. Whether the Trail plant caused any damage to the State of Washington since 1932, and if so what indemnity should be paid?

2. If the answer to the first question is in the affirmative, whether said damage should be stopped in the future, and if so, to what extent?

3. If the damage should be stopped, what measures should the Trail Smelter adopt? (Possibly subject to conditions or stipulations).

4. What indemnity or compensation, if any, should Canada pay following the answers to questions 2 and 3?

Summary of holding

In its first decision in 1938 regarding the first question, the Arbitration Tribunal determined that Canada had to pay damages to the U.S. government for the years 1932 to 1937. However, this compensation payment only applied to the damage caused to the soil of the Columbia River Valley. The pollution of the air was not considered to be damage, but rather only a transport medium for the exhaust gases. The U.S. also tried to prove damage to forestry, agriculture, and livestock, but the tribunal rejected this for lack of convincing evidence. 

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