William & Mary Environmental Law and Policy Review
Abstract
This Note explains that modern interpretations of Virginia Code § 15.2-970 have made Virginia municipalities immune to tort suits arising from the negligent maintenance of stormwater systems. Due to the Virginia Supreme Court’s holdings in Livingston v. Virginia Department of Transportation and other inverse condemnation suits, localities may be found liable when their stormwater management decisions cause property damage. However, following the Court’s holding in AGCS Marine Insurance Co. v. Arlington County, which prevented inverse condemnation claims arising from municipal negligence, residents are still unlikely to find legal redress for negligent stormwater management that results in property damage. Therefore, this Note argues that Virginia municipalities are broadly protected from lawsuits arising from a failure to plan for climate change’s effect on local stormwater loads. It then demonstrates, through an examination of several Virginia cities and counties that are working to upgrade their stormwater infrastructure, that Virginia localities in general are nonetheless planning for increasing stormwater loads in several distinct ways.
First, this Note discusses the growing threat climate change poses to Virginia’s stormwater infrastructure as well as common stormwater problems Virginia’s localities face. Next, this Note discusses how localities currently manage stormwater and the common law framework that traditionally guided construction and maintenance of those systems. It explains the modern interpretation of Virginia Code § 15.2-970 that conclusively shields localities from stormwater-related tort liability. Then, this Note addresses several recent Virginia Supreme Court cases that sustained inverse condemnation actions against localities and the Virginia Department of Transportation when flooding, caused by poorly designed stormwater infrastructure, damaged property. It analyzes AGCS Marine Insurance Co.’s limiting effect on inverse condemnation claims and argues that those claims are also likely to fail in the climate change context. This Note examines Vermont’s stormwater liability framework, which provides residents some redress when stormwater injures them or damages their property. Finally, it discusses how three Virginia municipalities are taking proactive approaches to increased stormwater volume by updating infrastructure and creating programs to protect citizens and their homes.
This abstract has been taken from the author's introduction.