U.S. Army Corps of Engineers Civil Works Controversies (New Orleans) - Legal Issues in New Orleans

Legal Issues in New Orleans

In March 2007, the City of New Orleans filed a $77 billion claim against the USACE for damages sustained from faulty levee construction and resultant flooding during Hurricane Katrina. Of this amount, only $1 billion was designated as direct "infrastructure damages"; the rest was attributed to consequential damages such as industry losses and the city's tarnished image. Hundreds of thousands of individual claims were received in the Corps' New Orleans District office. In addition to the City of New Orleans, other claimants include Entergy New Orleans, the city's now-bankrupt electric utility, and New Orleans Sewerage and Water Board.

In February 2007 U.S. District Court Judge Stan Duval ruled that the Flood Control Act of 1928 did not apply to cases involving navigational projects. He ruled that the Corps may be sued over alleged defects in its Mississippi River-Gulf Outlet navigation channel. Immunity for cases involving flood levees was apparently not addressed at that time.

On 30 January 2008, Judge Duval ruled that even though the US Army Corps of Engineers was negligent and derelict in their duty to provide flood protection for the citizens of New Orleans, he was compelled to dismiss a class action lawsuit filed against the Corps for levee breaches after Hurricane Katrina. He cited the Flood Control Act of 1928 which, among other actions, provided protection to the federal government from lawsuits when flood control projects like levees break.

While the United States government is immune for legal liability for the defalcations alleged herein, it is not free, nor should it be, from posterity's judgment concerning its failure to accomplish what was its task. This story—50 years in the making—is heart-wrenching. Millions of dollars were squandered in building a levee system with respect to these outfall canals which was known to be inadequate by the corps's own calculations.

Duval's decision left the New Orleans Sewerage & Water Board and Orleans Levee District as defendants in the lawsuit. The dismissal of the lawsuit also denied about 489,000 claims by businesses, government entities, and residents, seeking trillions of dollars in damages against the Corps, which were pinned to the suit and a similar one filed over flooding from a navigation channel in St. Bernard Parish. It was unclear how many claims could still move forward. The plaintiffs vowed to appeal to the United States Court of Appeals for the Fifth Circuit.

On 19 November 2009, the Court found the Army Corps responsible for the flooding by not properly maintaining the Mississippi River-Gulf Outlet Canal (MRGO). Judge Duval said that 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 ruled in favor of five of the six plaintiffs, awarding those from Lower Ninth Ward and St. Bernard Parish between $100,000 and $317,000 in damages. Duval, however, ruled against a couple from New Orleans East. In his decision, Duval wrote that the Corps was aware that deteriorating conditions of the canal would affect the levees in St. Bernard Parish and the Lower Ninth Ward neighborhoods. Duval awarded a total of $719,000 to the five plaintiffs but the decision leaves the U.S. government open to additional lawsuits from those affected. A spokesman for the Corps indicated the matter would be appealed, up to and including the U.S. Supreme Court.