Another powerful argument for a coordinated high-profile federal mission to raise preparedness for climate change impacts came last night with a federal district court decision holding the US Army Corps of Engineers liable for “monumental negligence” in its duties to maintain a key ship channel, leading to devastating flooding in some New Orleans neighborhoods. These failures amounted to a “man-made disaster” on top of a “natural disaster” (Hurricane Katrina) that resulted in the destruction of or significant damage to nearly every home in the Lower 9th Ward and St. Bernard Parish. Judge Stanwood R. Duval’s finding of misfeasance by the Corps, finding for several victim-plaintiffs, opens the door for billions of dollars in future civil claims against the government. Rather than appealing the decision, the Obama administration should: 1) promptly make good on its promise to provide billions more in aid to Katrina victims, and 2) actively engage the federal government in examining and elevating the nation’s overall level of preparedness for future extreme weather-related disasters and other climate impacts—- and in the process, limit tremendous future liability.
post by Anne Polansky
In a 156-page ruling issued November 18, Federal District Court Judge Stanwood R. Duval found for six plaintiffs in a civil action suit against the US Army Corps of Engineers. The suit centered on the Corps’ improper maintenance of a 76-mile shipping channel known as the Mississippi River-Gulf Outlet, or MRGO, which was dug as a shortcut to the New Orleans harbor from the Gulf of Mexico in 1965. At issue was whether or not the Corps exercised “due care” in its maintenance of the channel. The plaintiffs asserted that the Corps’ actions resulted in salt-water intrusion, the killing off of marshes, and erosion of the banks supporting the levees. These destructive processes in turn doubled or tripled the width of the channel, thus creating an unobstructed path to the city of hurricane-driven water.
IMAGE from Wikipedia
In his decision, Judge Duval said he was “utterly convinced” that the Army Corps of Engineers’ failure to properly maintain the MRGO “doomed the channel to grow to two to three times its design width” and “created a more forceful frontal wave attack” on the levee system. (LA Times coverage.)
“The loss of wetlands and widening of the channel brought about by the operation and maintenance of the MRGO clearly were a substantial cause of plaintiffs’ injury,” he found, according to local press. (Cases against the federal government are not tried by jury.)
(Judge Duval also issued rulings in 2005 and 2006 extending the time that Hurricane Katrina evacuees could continue receiving taxpayer-funded hotel stays (ref).
Why is this particular legal case relevant and important to federal policy on climate change?
First, it is the first time that the federal government has been held liable for damages as a result of Hurricane Katrina, supporting the contention many have made that the flooding was just as much a “man-made disaster” as a natural one. The overall poor condition of the levees and other flood control infrastructure has been cited as a contributing factor to the high death toll and severe property damage.
Second, it exposes the federal government to enormous liability. Six of the plaintiffs in this lawsuit were granted about $750,000, not a large amount, but the finding exposes the Corps to future claims and class-action suits by tens of thousands of other property owners who also lost their homes and who may decide to apply the same legal reasoning. The Justice Department estimates that the feds could be liable for billions more in civil claims. While the Army Corps of Engineers does not incorporate projected climate change impacts into its policies and projects, it should be required to so do, and should be held accountable for actions it has taken that further endanger human populations exposed to extreme weather events, expected to be exacerbated by climate change.
We would go even further here to claim that the US government has a responsibility to plan, prepare for, and protect as best it can the American people from potentially devastating impacts associated with global climate change, including more severe and frequent extreme weather events, and that the Army Corps of Engineers should be one of more than a dozen federal institutions working together in a coordinated fashion to do so.
Third, the case raises a fundamental principle, that the federal government cannot claim immunity to such claims under the guise that its decisions were discretionary policy judgments of their professional staff in implementing federal policy, and thus protected under federal law. (This argument is also often used, not only to protect federal entities from legal liabilities, but also to defend secrecy.) This was one argument attempted by Justice Department lawyers, summarily dismissed by Judge Duval, who said in his ruling:
“Ignoring safety and poor engineering are not policy, and clearly the Corps engaged in such activities.”
“The Corps had an opportunity to take a myriad of actions to alleviate this deterioration or rehabilitate this deterioration and failed to do so.“
Clearly there is much room for improvement in the way the Army Corps of Engineers carries out its mission—and much reason to update its mission to include consideration of climate change as a threat-multiplier in all of its operations.
Earlier this year we reported about another case of mismanagement and negligence at the Corps: the use of water pumps that failed basic field tests and thus needlessly exposed New Orleans residents to flooding, a problem exposed by a federal whistleblower:
New Orleans pumps unsafe on Katrina anniversary, report concludes: Army Corps preparedness cover-up?
And on the need for better climate impacts preparedness:
Associated Press coverage on YouTube: