A federal court ruling handed down last week charged the Army Corps of Engineers with “gross negligence” that led to the catastrophic flooding in New Orleans in the wake of hurricane Katrina.
U.S. District Court Judge Stanwood Duval Jr. minced no words in issuing his ruling, saying that the corps failure to properly maintain the Mississippi River-Gulf Outlet (MRGO) shipping channel directly contributed to the breaching levees that swamped much of New Orleans in 2005, a disaster from which many residents have yet to recover.
In his ruling, Judge Duval said that Corps of Engineers “shoddy oversight” of the shipping channel located southeast of New Orleans caused much of the flooding of St. Bernard Parish and the Lower 9th Ward, two areas hit hardest flooding after Katrina smashed into the gulf coast.
Vindication
The ruling serves as vindication for many that continue to suffer from the aftermath of Katrina. Residents of St. Bernard Parish and the Lower 9th Ward have long maintained that the Katrina was primarily a man-made tragedy resulting from the federal government’s failure to adequately maintain the levees protecting the city.
“Finally, somebody has said the truth,” Catherine Serpas told the Associated Press, adding that the Corps work on MRGO ”destroyed the family life we knew. St. Bernard will never be what it used to be.”
Monumental negligence
In his 156-page ruling, Duval charged the Corps of Engineers with “monumental negligence,” saying he was “utterly convinced” that the manner in which the federal agency failed to maintain the shipping channel doomed it “to grow to two to three times its design width,” and by so doing it “created a more forceful frontal wave attack on the levee” that protected St. Bernard and the Lower 9th Ward.
The failure to properly maintain MRGO and protect the city was endemic and lasted for decades. Duval said the Army Corps botched its 1976 environmental review for the MRGO project under the National Environmental Policy Act, or NEPA, by failing to adequately consider a range of environmental impacts the corps knew to be likely. Making matters worse, the agency neglected to update its NEPA compliance despite mounting evidence that the project was causing damage. ”The corps had an opportunity to take a myriad of actions to alleviate this deterioration or rehabilitate this deterioration and failed to do so,” Duval said. “Clearly the expression ‘talk is cheap’ applies here. The Corps’ lassitude and failure to fulfill its duties resulted in a catastrophic loss of human life and property in unprecedented proportions.”
Ruling will “open the floodgates”
Duval’s finding awards $720,000 in damages to four individuals and one business. As such, many legal analysts view the ruling as largely “symbolic.” That symbolism carries with it the potential of very real consequences for both the federal government and residents of New Orleans. Using an ironic choice or words, mayor Ray Nagin told CNN he hopes the decision will “open the floodgates” for more lawsuits against the federal government from individuals and possibly the city of New Orleans.
While there has been no official response from the government on the ruling, it is expected it will appeal Duval’s decision in the 5th Circuit Court of Appeals in New Orleans. Ken Holder, a spokesman for the Corps New Orleans district office signaled as much in a saying “Until such time as the litigation is completed, including the appellate process up to and through the U.S. Supreme Court, no activity is expected to be taken on any of these claims.”
Many expect the Army Coprs will find a more sympathetic audience with the 5th Circuit, that ”tends to be one of the more conservative circuits for environmental issues,” according to Stephanie Showalter, the director of the Sea Grant Law Center, ”They’re not as conservative as the 4th Circuit, for instance, but they tend to look at NEPA cases more from the government’s point of view and defer more to government action.”
But overturning the ruling my not be easy, even for an appellate court considered hostile to plaintiffs in environmental cases, said Tulane University law professor Oliver Houck in the New York Times. Judge Duval’s decision left little room for reversal, with its stringent attention to detail and technical information, including a 33-page appendix of graphs, charts and maps. “For an appellate court to reverse him on the facts is unthinkable,” Professor Houck said.
A “blot” on the Corps good name
Beyond paving the way for further lawsuits and offering vindication to those who directly suffered from the Corps negligence, the scope of Duval’s ruling could impact future plans for levee construction projects across the country.
“The American public frequently believes they are protected by these piles of dirt that we call levees, when they are not,” said Robert Bea, a UC Berkeley civil engineering professor who testified during three days of the trial. “I hope this ruling would serve as a wake-up call.
Democratic Senator Russell Feingold of Wisconsin and Republican Senator John McCain of Arizona said the ruling made clear the “urgent need” to reform the water control policies of the Corps – policies too often beholden to the “pork-barrel political interests” of their colleagues.
Republican Senator David Vitter from Louisiana issued a statement saying that he he hopes the ruling will end a Corps culture of “gross irresponsibility,” but that it was “too little, too late” for residents.
Professor Houck charaterized the whole sad episode as “the biggest blot on the corps in its history. You can’t imagine the amount of power and pride that the corps exercised here in New Orleans.”
All that ended on August 29th 2005.
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