Court rules against Army Corps in New Orleans flooding case

by Megan Sever
Thursday, January 5, 2012

A housing complex in New Orleans flooded after Hurricane Katrina. Water levels in much of the region did not drop for weeks. Louisiana Department of Environmental Quality

A district court judge ruled Wednesday that the U.S. Army Corps of Engineers is liable for much of the flooding in New Orleans following Hurricane Katrina in 2005. The ruling puts the Corps and the U.S. government on the hook for millions if not billions of dollars in damages and punitive penalties, and could open the floodgates for more such lawsuits nationwide, experts say.

All previous lawsuits had been rejected by the courts because they focused on the levee failures; the Flood Control Act of 1928 indemnifies the Army Corps from legal actions arising from the failure of flood control projects. However, the plaintiffs in the latest case — five New Orleans homeowners and a business owner — argued that the worst flooding damages after Katrina were caused by the Corps' negligent maintenance of the Mississippi River-Gulf Outlet (MRGO), a shipping canal that the Corps finished in 1968 that allowed freighters easier access between the Gulf of Mexico and the inner harbor of New Orleans, which was constructed between 1917 and 1923.

“Because the MRGO channel was a navigation channel, not a flood control channel, it wasn't under the same statutory blanket of immunity attached to flood control improvements,” says J. David Rogers, who holds the Hasselmann Chair in Geological Engineering at the Missouri University of Science & Technology in Rolla. Rogers was the only geologist on the National Science Foundation’s Independent Levee Investigation Team.

After a 19-day bench trial, the judge agreed with the plaintiffs, calling the Corps' failure to maintain the shipping channel “gross negligence” and making the Corps liable for loss of life and property.

“It is the Court’s opinion that the negligence of the Corps, in this instance by failing to maintain the MRGO properly, was not policy, but insouciance, myopia and shortsightedness,” Judge Stanwood R. Duval Jr. wrote in his decision Wednesday. The Corps knew for decades that the levees protecting Chalmette and the Lower 9th Ward from the MRGO were not sufficiently maintained, Judge Duval wrote. This failure compromised the “Reach 2” levee protecting Chalmette and the Lower 9th Ward and “created a substantial risk of catastrophic loss of human life and private property due to this malfeasance,” he wrote. Furthermore, he wrote, “the Corps had an opportunity to take a myriad of actions to alleviate this deterioration or rehabilitate this deterioration and failed to do so.”

The MRGO was originally a 122-kilometer-long, 11-meter-wide, 152-meter-deep shipping channel. Part of the negligence issue was that the Corps did not adequately maintain the channel. But another part was that maintenance the Corps had performed on the channel over the years, including dredging, widened and deepened the channel extensively. That in turn eroded the levees and the banks beneath them and killed off trees and vegetation in the wetlands between the channel and the city that would have otherwise provided some measure of storm surge protection — basically giving the storm surge an unimpeded journey into St. Bernard’s Parish and the Lower 9th Ward, says John Day, an ecologist at Louisiana State University in Baton Rouge who has studied the region for years and testified in the case.

And that is what happened when Hurricane Katrina hit. The storm surge and waves swept up the MRGO from the Gulf of Mexico and obliterated the levees, sending water cascading from the MRGO into St. Bernard’s Parish and the Lower 9th Ward, Day says.

What made this decision “easy” for the judge, Day says, is that people had predicted from the beginning that it was going to fail. A report by a Corps geologist in 1958, when the MRGO was under consideration but a decade before it was finished, warned specifically about the potential for such a failure, based on the geology of the region, Rogers says. Portions of the levees along the MRGO were comprised of “cohesionless silts, peats and organic ooze,” with a consistency “like chocolate pudding,” he says. And subsequent reports to the Corps by their own geologic consultants in 1994 likewise warned of failure, as have other reports since then. MRGO was finally closed last January, after years of political discussions over its value versus the danger it poses to New Orleans.

“It sounds like the judge was both chagrined and irritated that so many warnings about dire consequences could be issued, and so little done — almost nothing — to act on these warnings or undertake mitigative measures to correct the shortcomings,” Rogers says. “I am not a major proponent of litigation, but it would not seem to be wise to allow any state or federal agency blanket immunity to shield them from any negligent actions that result in the preventable deaths of thousands of our citizens,” he says. “People are going to be outraged by engineered systems that fail so miserably, and they are demanding more robust protective measures.”

No other engineers could escape culpability if they were to design structures that failed so miserably, Rogers says. “So, there has to be some increased level of performance and accountability, and that really starts at the top, in Washington, D.C., because these folks control the policies and the budgets.”

Indeed, one of the major issues at hand is budget cuts the Corps sustained over the last few decades, Rogers says. Since the early 1980s at least, he says, there was an increasing drive toward economy — it was all about cost-cutting and there were no promotions for project managers who couldn’t control their budgets. “They tried to do more for less, and they sacrificed on safety,” he says. There’s no doubt the budget cuts played a role in this disaster, but one of the big lessons to come out of all this is that society demands increased safety factors when protective measures are sitting next to densely populated urban centers."

“I really think that apportioning blame here, even in the convoluted way they did it, is very difficult,” says Jeff Mount, a geologist at the University of California at Davis, who has worked extensively on California’s levees. “I cannot imagine that this will hold up on appeal, but if it does, it really raises hell on the Mississippi system,” he says. “So we will see if the Corps appeals and wins. If they do not, then they had better hire a lot of lawyers to settle the billions in claims coming their way,” he adds.

This decision is particularly problematic for the Mississippi River system, because the Corps continues to manage its levees, Mount says. In other regions, such as in California, the Corps tends to build the projects and then turn them over to the states — also turning over liability. Nonetheless, he says, there are likely to be repercussions throughout the U.S.

Indeed, this ruling could open a Pandora’s box on the Mississippi, Rogers says. “Is the Mississippi now considered a navigable channel or a flood control project?” he says. If it’s the former, any flooding along the entire length of it could now be subject to the same litigation.

The Corps is already stretched thin, with strained resources, low morale and an ever-evolving mission, Mount adds. “The unintended consequence of this lawsuit will most likely be an unwillingness on the part of the Corps to take any risks, particularly on the Mississippi,” he says. But flood management, “which is all about the odds, requires some risk taking,” he adds. “Risk-averse organizations tend not to be terribly effective. Then again, they get in trouble a lot less as well.”

What the United States needs to do, Rogers says, is decide what course of action we should take as a nation to provide more robust and resilient protective systems. “Some people assert that we should relocate people from high-risk areas, while others argue for more expensive protective systems. And others, like myself, feel that we need a blend of both approaches,” he says.

Furthermore, he adds, there needs to be an external peer review of Corps' designs and activities, so the Corps gets an additional layer of external perspective on their proposals. For example, he says: “We have employed external peer review panels on dams for five-plus decades now, and dams have been shown to be 10,000 times less likely to fail than earthen levees. Clearly, we can't afford to ignore geology, and thereby predestine a project to fail disastrously."\

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