Court Faults Army Corps In Katrina Levee Breaches
Late last Wednesday, there was a blockbuster court ruling that got lost in the healthcare and oversight hearing onslaught. However, the decision by Eastern District of Louisiana Judge Stanwood R. Duval Jr. in the In Re: Katrina Canal Breaches Consolidated Litigation case is a game changer with immense and far reaching ramifications.
Duval excoriated the Army Corps of Engineers and held them, and the government, directly liable for much of the flooding that devastated New Orleans’ Lower 9th Ward and St. Bernard Parish in the Hurricane Katrina disaster of 2005.
The full opinion is here. It is long, 156 pages, detailed, and absolutely fascinating reading. Seriously.
The potential ramifications are huge and, if the decision holds up in the certain appeal, affect large swaths of policy from basic concepts of Federal governmental liability, the structure and performance of government contracting and the entire future of national flood control policy.
Duval finds:
The Corps’ lassitude and failure to fulfill its duties resulted in a catastrophic loss of human life and property in unprecedented proportions….
Clearly, in this instance, the Corps shortchanged the inhabitants of New Orleans and the environs by its myopic approach to the maintenance and operation of the [Mississippi River Gulf Outlet] ….. It simply chose to ignore the effects of the channel.
…
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. For over forty years, the Corps was aware that the Reach II levee protecting Chalmette and the Lower Ninth Ward was going to be compromised by the continued deterioration of the MRGO, as has been exhaustively discussed in this opinion. 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 the expression “talk is cheap” applies here.
The government had asserted immunity under the Flood Control Act of 1928 which, along with other laws, generally protects the Army Corps of Engineers from liability for defective flood-control project and provides the government can’t be sued for acting with reasonable care or making a judgment call based on policy. Duval, however held the pertinent shipping channel to be a navigation canal, not a flood-control project under the Flood Control Act of 1928 and that the Corps breached the duty of due care in their construction, maintenance and oversight of the navigation canal.
Duval’s current ruling only covers six named plaintiffs, but is thought to potentially open the door to over 100,000 plaintiffs’ actions on behalf of private property owners and businesses pending in the areas described in the ruling. So now the obvious question is whether Judge Duval’s monumental decision will withstand appeal.
The New York Times, citing Tulane University law professor Oliver Houck, an expert in environmental and natural resource law, indicated:
The United States Court of Appeals for the Fifth Circuit in New Orleans, where the case would go, has a record of hostility to plaintiffs in environmental cases, said Oliver Houck, a law professor at Tulane University. But, he said, Judge Duval’s decision is so technical and packed with details — it came with a 33-page appendix of graphs, charts and maps — that there are only a few areas where it would be exposed to a reversal.
“For an appellate court to reverse him on the facts is unthinkable,” Professor Houck said.
Well that still leaves the law of course, in this case Duval’s interpretation and application of the Flood Control Act of 1928 and the other immunity sources claimed by the government, but there is no question that Duval has intentionally and meticulously crafted a piece of art designed to anticipate and withstand scrutiny. Here is the Appendix of charts, graphs, maps and specs that Houck described; specially downloaded from PACER for the discerning readers of Emptywheel.
The government has been placed in a game changing box. Duval’s opinion is a work of art and, despite being lost in the hubbub of the healthcare shuffle and cable shouting orgies over Sarah Palin, is of seminal importance. Enjoy.
bmaz,
Thanks for focusing on this. I thought it was pretty important, too, but the details of your report are informative.
Duval wrote,
So, is this another “Heckuva job, Brownie” thing? If so, who in the Corps was responsible for this?
Even if it wasn’t policy, “insouciance, myopia and shortsightedness” was practically a Bush administration trademark, wasn’t it? They didn’t believe that government was competent, anyway. They preferred to hire contractors.
Bob in AZ
Such an interesting word to hear coming from a judge’s mouth…..but perfect.
Bmaz, I have lost some confidence in the willingness of the government to obey court orders. Assume this withstands all the appeals. What is to stop the government from doing what they did with the torture photos and just not obey the ruling. It feels to me that the government treats rulings the way Wall Street treats losses–something to figure out how to undo by hook or by crook (not just by appeal–by changing venue, changing law, ignoring the ruling, any means necessary). I am not a lawyer and may be painting this with a broad brush, but does the government have to follow the law?
Well, ultimately, yes they do. They are given a lot more deference and latitude in national security and defense issues, so there are many more avenues for them to demur there; but a decision like this, if it stands up, binds the government. Of course, the craven Congress could fashion an out I suppose…..
Craven Congress?
There’s something called ‘voting’ that makes a difference over time.
Look at the number of new Dems elected to the Senate in 2006 and 2008; aside from whether cloture is good, bad, or indifferent, there’s no way the health care debate would be where it is without that ‘magic 60’, if for no other reason than to run the committees.
But as for those most excellent sources you generously uploaded to the FDL servers, thank you!
My ‘special shout-outs’ list:
1. I wondered how long it would take me to spot highlights of ‘no vegetation’, and 10.5.B with it’s “NO defensive vegetation” sent a chill down my spine.
2. Combine it with 14, showing a 4.2″ lowering of the shore levels, for a 7 foot loss in elevation since 1985, and that’s a bit of an eye-opener.
3. Graphics 12A, 12B, and 12C made me recall hearing the first reports on NPR, when they thought that the levies had held; remember, it took awhile for the damage to become apparent… Jesus, Mary, and Joesph…
4. And 16 is a doozy; might we say, ‘a magnitude larger than anticipated’?
I was told by someone (oceanographer) that the problems with NOLA were fairly widely known, but that the Corp of Engr. funding had been sent elsewhere. However, I don’t have details, nor do I have a citable source. I presume that was NOT the point on which the good judge had to make his case.
But if you say the decision is that good, I’ll put it in my ‘hopper’.
Could you extrapolate briefly with respect to your point regarding:
As for Flood Control Policies… you’ve heard me fume about politicized, crappy ‘flood control’ policies in the past. The Flood Control in my area has become badly politicized, and the data modeling has been taken from fragmented subsections of riverways – which means they can’t accurately model how the whole system is likely to behave when internal dynamics build up inside of huge, moving bodies of water.
In other words, people are paid to sound like they know what they are talking about. Except they are talking about only one section of a very big thing; consequently, their words are well-intentioned, but not very useful.
Looks like the judge has sussed that out?
If the decision holds up, I think it has large ramifications for liability on all large public works projects. It should cause a reevaluation of how they are structured to account for potential liability.
excuse me while I consult several dictionaries to re-aquaint myself with the meaning of this word….
The bigger message regarding liability lies in the failure to address public works projects in a timely matter.
I imagine this could refocus infrastructure stimulus dollars pretty quickly.
By the way folks, for anybody who read the post earlier, I was able to insert the Appendix as a link and that is now contained in the next to last paragraph.
I hate to say this but I rememver the army corp of engineers marched the rotten levee into someone’s office in the administration and told them “this is what the levee is made of” and crumpled that levee into dust
they were still denied authority to rebuild said levee, I believe funds were rescinded
I havn’t searched up the link yet but I remember this event
that means the army corp of engineers is probably not responsible but some government is, same thing, the government has to make good
here’s something people don’t understand though;
the gulf provides I beleive the second highest source of revenue for the government, next to income tax
whatever damage has been done is certainly paid for with the revenue they realize
we need the link whence the army corp informed those funding their project at the levee that the levee would fail first big storm
look at me, I found it just before I go to bed
have a good night all
Good work perris. Thanks.
Thanks for the post bmaz.
Excellent!
A little more sunlight on Mitch Daniels would seem to be in order. Oh, jeebuz, he’s Governor of Indiana… uffda…
Wow.
I guess Indiana is in good hands.
Anyone wanna bet me that Mitch Daniels’ Wikipedia page is going to change within the next hour or so…?
I’m not willing to bet my one hubcap awarded to me by bmaz, but I might bet a Beamish or two.
and rOTL @ 15.
Here’s a collection of studies by the American Society of CIvil Engineers on the levees:
Certainly I haven’t looked at them all, but I was impressed with the synopsis at the beginning of this particular one.
This is what I was thinking when I read about this ruling.
The Guardian write up is interesting too.
Glad you found it, perris. I went out googling and while I didn’t find what you were seeking, I did find this (from FoxNews of all places!) which might also interest you.
You mean this part, fatster?
Whoops…
More good material for Stewart and Colbert. *sigh*
In retrospect, it seems that the only way to truly digest all that has happened to us since 2001 is through our blogs and the traditional reliable print media (most of which are accessible through the internet nowadays), with Stewart and Colbert to polish it off just right and leave us with the feeling that we are not insane, just wandering through a bad dream, and wandering together. Yes, big huge *sigh*.
From the page you link to, fatster:
What I find so striking is that by removing the word ‘Katrina’ from this clip, it could just as well have been written by Citicorp, Goldman Sachs, or Fannie Mae — about the ‘risk and vulnerability’ in the financial sector.
I guess inserting this one phrase, “pre-Bush Administration”, would just about cover it all, huh?
Apologetically OT (but related in the sense that the Army Corps of Engineers could have had funding and staffing if not distracted).
Leaked Report Shows UK and US planning details of Iraq Invasion by Feb. 2002
Hmmm! Just about the time Cheney is telling the CIA, the State Department and the DIA to come up with something to back up British reports of documents showing Iraq trying to obtain Nigerien yellowcake, Blair and Dubya are already activating invasion plans. This despite not having one suggestive report of any WMD’s being about. All the (bogus) evidence presented at the UN came AFTER they had made their decision.
Even more appalling was how ill-prepared the British military was as a result of the politicians need to keep secret their preparations…which were kept at a minimal level to avoid leaks and suspicions. There was political agreement, it seems, but operational preparations were so paltry that infantry troops had only five rounds to fire and ill-suited equipment were sent to be used in the arid deserts (including a crate of skis).
I hope you have checked EW’s Timelines lately.
I don’t know how credible this report is that you link to, but it does synch with EW’s timelines almost eerily.
A friend of mine lost his home in St. Bernard Parish. Insurance paid off the house but he still owes a large sum for the lot, which was left highly contaminated and unfit for sale, not that there was any potential market. I hope this ruling will have some bearing on his case, although a final settlement could still be a long way off.
This decision ought to make a lot of folks in California very nervous. There have been more than a few studies and reports about the poor state of the levees in the Sacramento Delta. If an earthquake hits and turns these levees into mush (as these reports consistently predict), a decision like this one would put the ACE and the state of CA on the hook for many millions of dollars — more dollars than it would take to fix the levees in the first place.
Of course, given the financial state of California right now and the political state of DC, I don’t expect this decision will actually get more money appropriated to fix these levees. It will just cause the people who can see the mess coming to sleep less well at night.
Excellent point Peter.
Oh, joy. My nervous plate is already full. I’m just kind of kidding.
This decision is likely going to make lots of folks in Gulf of Mexico ports nervous– I’m thinking of the Houston Shipping Channel, and Beaumont-Port Arthur in particular, the site of some major gas refineries and a major LNG port in an industrial area on the Sabine-Neches waterway, an industrial ship channel. However, the Port Arthur site is not surrounded by residential housing, as in NOLA, and I think the waterway is probably newer.
Bob in AZ
I had the opportunity several years ago to meet a senior official with the ACE who was moonlighting. I was shocked that anyone so senior in the government would be doing anything with his spare time except sleeping. Shoddy work ethic, from the top. Bet this has been the work environment for a long time.
Ya know how long they have known that the city was below the water level with out a storm.
Ya know how much they have spent on dikes, pumps, and flood barriers.
They could have raised the city above flood height and built a new city for what has been spent trying to keep the water out.
Just like all the other problems this country has, putting bandaids on things is better than fixing the problem.
Ya know how cold and heartless you sound? Were you one of the “let it sink into the swamps” gang that held such sway in 2005?
Channelization of the wetlands to save time and gas for the oil company drilling crews and the greed of developers building out in New Orleans East spelled doom for the greatest American city, people like you simply seal the deal.
I moved to New Orleans at age 19 (1969-73). It was common knowledge in everyday life that if a strong enough storm came along to whip up Lake Pontchartrain, the city would flood like what happened in ’57 with Hurricane Betsy. That was 40yrs ago.
Also, the Mississippi is trying to change its path where it deposits into the Gulf of Mexico, but engineers are forcing it where it benefits the shipping industry. In all the Katrina coverage, I only heard this mentioned once, in an interview with Cokie Roberts, and she only touched on it. If the river could do its natural job, it would build up wetland protection against hurricanes, whereas our engineering fights nature and depletes the wetlands.
is this the post where we come to say “fuck” and all that? late night, right?
87 pages of “findings of fact” (not counting the charts and such in the Appendix) . . . Houck wasn’t kidding. If this ruling gets overturned, it’s not because Duval was sloppy.
It is absolutely stunning in its detail and thoroughness isn’t it? It is really a great read. Remarkable.
Hmm, let’s see.
Duval ruled on Wednesday, and Mary Landrieu got a $100 million piece of pork pie for Louisiana,just yesterday.
Well, its NOT the Louisiana Purchase, but a dandy down payment ,and a damn good start.
Does this decision only apply to the Lower Ninth and St. Bernard MRGO levee failures, or also to the Matairie area flooding?
I remember pile-drivers ramming huge steel plates into the Orleans Parish side of the 17th street levee out near the lake at around this time (1984-85). I’m pretty sure the breach happened at that exact spot.
Regardless, the diaspora is complete, and any legislative muscle the region once had is gone. I have little faith that this decision will ever amount to anything tangible. Meanwhile, the Casino Coast over in Biloxi/Gulfport is doing just fine, thank you.
I hadn’t seen this story, so thank you much, bmaz, for writing it up, and so well. Peterr’s mention re the Sacramento delta levees is important, as the collapse of these levee’s could eclipse the cost of the New Orleans Katrina disaster, if not in human lives, in dollars.
By the way, the Army Corps of Engineers is involved in a controversy over another leaking levee in the San Francisco Bay Area, in a story with complex jurisdictional issues. In this case, the Army Corps is working on a wetlands project, and supposedly are causing problems which are affecting a levee owned by a city and development company in the North Bay. The Army Corps says it has no liabilities for this case:
The SF Bay area and the Sacramento Delta are a patchwork, not a system, of levees. As the article you linked to notes, the question of responsibility is a huge one. The ACE has a kind of general responsibility for the overall waterway, but lots of these potentially problematic levees are privately owned. The most problematic were built by developers who then put new houses on the newly dried land. The ACE sees the overall problems, but the levees in question belong to a host of owners: ACE, private owners, cities, and the state of CA.
Fixing this mess is bad enough from an engineering POV. Dealing with the jurisdictional issues makes it exponentially harder. Perhaps Judge Duval’s ruling will light a few fires in CA — and (as bobschacht noted @29) along the rest of the Gulf coast.
No doubt Duval remembered reading about the Corps employees using newspaper instead of rubber to stuff into the levees:
New Orleans Levees Filled with Newsprint?4 posts – 4 authors – Last post: Sep 1, 2008
New Orleans Levees Filled with Newsprint? … So how strong is newspaper? … “The whole length of the wall was stuffed with newspaper.” …
uselectionatlas.org/FORUM/index.php?topic=81891.0 – Cached
Levees Constructed with Newspaper :mad: (New Orleans: building …2 posts – 2 authors – Last post: Apr 25, 2008
St. Bernard and the East protected by levees with newspaper in the expansion joints, not rubber as specified in the contract Gee does this …
http://www.city-data.com › … › US Forums › Louisiana › New Orleans – Cached – Similar
New Orleans floodwalls stuffed with newspaper?Apr 27, 2008 … The gap, or expansion joint, is filled with a series of barriers to prevent water from passing through. … According to New Orleans engineer Subhash Kulkarni, the rubber … Clinton, Bush slashed spending on levees …
http://www.wnd.com/index.php?fa=PAGE.view&pageId=62741 – Cached
My parents lost their home in Katrina. The lived on the 17th Street Canal. My brother lives on the other side of the canal and was spared. 148,000 people have not been able to return to New Orleans. The rebuilt levees are not any good. The pumps in the stations are trash. The corp knows it.
Would ever did this needs to be punished. I fear that will not happen.
And over 1,000 people died. Murdered. But given what we are seeing with health care reform it is confirmed. Our government is willing to kill us either passively or actively. Doesn’t matter a fuck to them.
Crap, the edit button is expired. Never was a good proofer.
That photo at the top doesn’t really show the bad part. Where my in-laws lost their houses, down in St. Bernard, the water came above all the first floor windows and on up the rooflines, throughout the Parish and the 9th Ward. And THAT wasn’t from the levee failures uptown, that was the Mr. Go levees, as the MRGO is known there. Mr. GO was the OPPOSITE of flood control, since everyone knew that that shipping channel was in fact reducing the natural flood control – strictly a commercial enterprise. It’s nice that a judge noticed.
And also, an appeal is NOT certain. Who makes the decision to take an appeal? That “Yes We Can” guy…
How about some FDL-style heat applied to Holder’s DOJ?
There is a thought. I like that idea.
Oh, I think an appeal is pretty certain. In fact, I can guarantee you they will appeal; if the only exposure was these plaintiffs, maybe it would be possible they would not appeal. But the government will fight like hell to get this opinion off the record in light of the likely application to as many as 100,000 other plaintiffs. No way it is not appealed.
Storyartist wrote @ 37,
“Also, the Mississippi is trying to change its path where it deposits into the Gulf of Mexico, but engineers are forcing it where it benefits the shipping industry. In all the Katrina coverage, I only heard this mentioned once, in an interview with Cokie Roberts, and she only touched on it. If the river could do its natural job, it would build up wetland protection against hurricanes, whereas our engineering fights nature and depletes the wetlands.”
Actually, in the wake of Katrina there was some decent TV coverage of these issues, mainly on CNN, IIRC. There are competing interests: The residents of the area, in particular the Ninth Ward and adjacent parishes; The shipping interests; Those in charge of maintaining the swamp areas between the city and the sea; and Congress, who has to pay for it. Of course there were competing jurisdictions (state & federal among them), and competing mandates (Army Corps of Engineers, & state agencies). The CNN broadcasts covered these issues fairly well, I thought, including the issue of the natural peregrinations of the Mississippi that you refer to. In addition, there was the issue that the swamps form a natural buffer for the storms, but commercial interests and short-sighted politicians ignored the function of these swamps, and so there was a recent trend whereby the size of the swamp barrier has been diminishing over the past decades. Those broadcasts are probably still in their archives.
And then there was the “insouciance, myopia and shortsightedness” that Duval wrote about.
Bob in AZ
When I moved from New Orleans in 1969 it was 100 miles from the gulf. Today it is 50 miles from the gulf.
Right after Katrina I found a lawsuit brought by a contractor who was working on the levees in the 90’s (I think it was the 90’s) The contractor had bid on a project to drive sheet piling under the levees. When they started they realized that the peat was much deeper than the sheet piles and this would eventually cause flooding. They lost the case because they were told to do it the way that the corp wanted it done. The contractor wanted to go down below the peat with the sheet piles. I guess you would call this losing on a technicality. The technicality killed many and destroyed a city. But it did gain the republican party an entire state. I cannot find the pdf on line any longer but will keep looking.
100,000 is very high. Not that many filed by the deadline, and many of those were from the other failures – this decision is only applicable to the MRGO failure, the first and worst failure. Deduct from the possible total, the amounts most plaintiffs have received from flood and other insurance, and you’re not talking about huge sums here. The better-off residents have already gotten their insurance proceeds and mostly settled elsewhere. The ones who could use these lawsuits proceeds the most are the poorer folks from down in Poydras and up in the 9th Ward. Unfortunately, they were also the ones most likely not to have filed a timely claim.
Remember, the storm itself didn’t cause the flooding; the city survived that hit fairly unscathed. It was the levee failures in the hours and days after that killed and destroyed.
Insurance companies that have paid sums out are usually entitled to recover sums paid our as subrogation rights; I don’t think you get to deduct those. If the govt. is liable, the govt is liable for the true damages.
The storm caused poorly built levees and floodwalls to fail.
The deaths were caused by a failure to evacuate the city. Many of those that died lacked the resources to evacuate themselves. No transportation, no money, no place to evacuate to. This was known in advance.REMEMBER Link
http://pharyngula.org/index/weblog/comments/drowning_new_orleans/P100/
The deaths were due to a failure to notify responders that the levees had failed. It was denied by those who knew that they levees had failed. REMEMBER link http://www.truthout.org/article/white-house-knew-levees-failure-night-storm
REMEMBER when the president said we dodged a bullet. Did you remember wrongly?
No. link http://en.wikinews.org/wiki/Bush's_Katrina_statement_contradicted_by_emerging_evidence
The deaths were caused by a failure to use the resources that were needed
to alleviate this humanitarian disaster. REMEMBER there were rescue helicopters ready to go, for days, while American citizens drowned and died. Remember link http://www.gq.com/news-politics/newsmakers/200905/donald-rumsfeld-administration-peers-detractors?currentPage=4
alinanustex
This is one more case of neocons murdering fellow Americans . The money that the neocons stole when they looted our Clinton era surplus could have rebuilt the levees in NOLA . Our government -gwb43- pissed away huge sums of money in an illegal occupation in Iraq.
The Corp of Engineers tried to get the money but the bushies told them no – we can’t afford to protect one of our own Great American cities. Mitch Daniels aided and abetted murdering Americans in NOLA. Wonder how much those black site torture facilities cost , and how much of that money would have covered repairing our at risk infrastructure .
The Neville Brothers are right – flooded New Orleans is a crime scene -and the perpetrators are still at large.
Also in a quick PS – the Cubans who have arguably the best search and rescue personnel on the planet -for finding survivors after large storm events were preparing to send many teams to help the Katrina survivors – but were told by the bushies to stand down.
the way I see it the army corp of engineers is going to be vindicated on appeal, though Ianal, the corp did due diligence and the administration refused their advise and refused giving them the resources advised
the government is still going to be responsible but this is not the acoe’s fault.
No, if the govt. is liable, it will be through the Army Corps, they are the governmental entity jurisdictionally responsible.
bmaz, you’re a lawyer and I’m not but I think the agency that declined funds will be responsible, not the agency that wanted to do the work
if a police man is denied his car then he can’t be held responsible for not getting to the scene of a crime
Legally that is simply not correct. The liability flows through the governmental entity with responsibility for the project.
so if the government takes a police dept’s car away due to budgetary consideration and a crime happens becuase the police can’t get there, the police are still liable?
Taxpayers should not have to pay for people who choose to live 12 feet below sea level. By that logic the government should build a bubble over my town and if a tornado gets through it I should get a big payoff.
It’s absolutely nuts. Oh, and it’s not in the Constitution.
I don’t agree with your cold-ass hard nose flipping the bird at Ninth ward residents. However, I do agree that areas below flood level in a flood plain should be zoned accordingly, requiring appropriate flood-resistant building permits with accessible above-flood level emergency space. Not just in NOLA, but in every flood plain.
Also, in areas where flood plains are extensively utilized there ought to be a Flood Plain Management Authority responsible for regulating and managing all relevant agencies, from Shipping Canal construction and maintenance to House Zoning authority and construction.
Bob in AZ
tinman, you MIGHT be correct if you wanted to give all the funds collected from the gulf coast over these years that funded the government and kept your taxes lower
let me tell you, you would be giving them FAR more then this is going to cost
the gulf gives the us it’s second largest source of income, the first source being income tax
but thanx for playing the concern game
Some background in form of a 2002 series by NPR on the endangered Louisiana Gulf Coast. Note that there might also be some associated video through Bill Moyers’s old NOW program.
These programs were where I first came to understand something of how bad the environmental problems are, and also the magnitude of the danger to the city.
Thanks for this! I was probably thinking of this series when I credited CNN for something like it.
Bob in AZ