Judge Rips USACE over Katrina Failures
The many victims of New Orleans’ “tragically flawed” levees cannot prove that the Army Corps of Engineers caused the system’s failure during Hurricane Katrina—but even “if the levee was designed improperly, the Corps is absolutely immune,” a federal judge has ruled in a blistering order that blasts the agency as unaccountable for its documented failures.
“I feel obligated to note that the bureaucratic behemoth that is the Army Corps of Engineers is virtually unaccountable to the citizens it protects despite the Federal Tort Claims Act,” U.S. District Judge Stanwood R. Duval Jr. wrote in a scathing 39-page Findings of Fact that accompanied his April 12 Judgment in In Re Katrina Canal Breaches Consolidated Litigation.
“The public fisc [treasury] will very possibly be more jeopardized by a lack of accountability than a rare judgment granting relief," the judge concluded.
“The untold billions of dollars of damage incurred by the Greater New Orleans area as a result of the LPV [Lake Pontchartrain and Vicinity] levee failures during Katrina speak eloquently to that point.”
8 Years of Lawsuits
Duval has presided over eight years’ of litigation stemming from the failure of levees and floodwalls during Hurricane Katrina, the nation’s costliest natural disaster and one of deadliest.
Fifty-three levee breaches were reported in the New Orleans area during the hurricane, which killed more than 1,800 people.
The current case, filed by six Katrina victims and their families, attempted to blame the U.S. Army Corps of Engineers and its contractor, Washington Group International Inc., for the breaches of the East Bank Industrial Area floodwall that catastrophically flooded New Orleans’ Lower Ninth Ward on the morning of Aug. 29, 2005.
Acknowledging that this will probably be his final Katrina case, Duval found that the plaintiffs could not prove that the Corps and contractor were directly responsible for the breaches in the floodwall, which ran along the east bank of the Industrial Canal.
Satellite images show the levee breaks in the Industrial Canal. In all, 53 breaches were reported in levees across the New Orleans metropolitan area and St. Bernard's Parish.
But far from exonerating the 38,000-member Corps—the world’s largest public engineering and construction agency—the judge used the occasion to fire a scorching parting shot at the centuries-old institution.
The Army Corps of Engineers, formally established by President Jefferson in 1802, built the now-infamous floodwall as part of the Lake Pontchartrain and Vicinity Hurricane Protection Plan. The program, part of the Flood Control Act of 1965, involved construction of a series of control structures, concrete floodwalls and levees intended to protect the Greater New Orleans area from flooding.
The Flood Control Act mandated the Corps of Engineers as the federal agency responsible for levee design and construction.
Levee inspection is a key responsibility of the U.S. Army Corps of Engineers. The 1965 Flood Control Act made the Corps responsible for levee design and construction.
The focus of the latest trial was on improvements made by the Corps to the EBIA floodwall. The new I-Wall was constructed with longer and deeper sheetpile than the original floodwall.
Duval’s ruling noted a “structural anomaly” in the joint and field weld that connected the old and new floodwalls. Experts at trial called the differing lengths of sheetpile an “undesirable design feature” that made structural failure more likely during a storm surge, the ruling noted.
Duval also noted testimony that called the connection “very crude” with “very, very low resistance to tearing when stress was applied.”
WGI worked for the Corps of Engineers at the time under an umbrella contract known as a Total Environmental Restoration Contract (TERC). The Corps ordered WGI to draft recommendations and outline a work plan to bring the site into compliance with Louisiana Department of Environmental Quality standards.
The work included identification and removal of buried structures, as well as removal of contaminated soil and backfilling of those areas and holes.
Katrina was a Category 5 hurricane the day before it roared onto the Gulf Coast in August 2005. It generated the largest storm surge elevations in U.S. history.
Katrina generated the largest storm surge elevations in the history of the United States.
“With the existence of the MRGO [Mississippi River Gulf Outlet] and the massive destruction of the wetlands surrounding it caused by the Army Corps of Engineers' failure to armor the banks of that channel, the storm surge drove up the MRGO, into the [Gulf Intracoastal Waterway] and finally into the [Industrial Canal],” the judge wrote.
The breaches in the floodwall were 180 feet and 793 feet wide.
Burden of Proof
The plaintiffs contended that the Corps and WGI failed to conduct a full geotechnical site assessment, to evaluate fully the impact of their activities on the floodwall, and to employ prudent engineering practices in their work before the hurricane.
WGI argued that it was immune from liability because it had been working under the Corps’ direction and because its environmental remediation work had not contributed to the breaches.
The U.S. argued that claims against the Corps of Engineers were barred by the Flood Control Act. It also contended that the breaches were caused by deficiencies in the floodwalls’ original design or construction.
Duval's ruling notes that the law required the plaintiffs in the case to prove negligence and causation and to provie that the defendants' alleged defects directly caused the harm—a tall legal order that the plaintiffs ultimately could not meet.
Nevertheless, the judge said, the “floodwall anomalies created a dangerous condition in the event of a catastrophic storm surge event such as occurred with Katrina."
He called the floodwall collapse “a disaster waiting to happen.”
‘Absolute Immunity’ amid Negligence
Duvall said the more than 21,166 entries in the Katrina consolidated docket had raised many “vexing and unique” issues.
Chief among them: the lack of “judicial relief” for hundreds of thousands of people and tens of thousands of businesses harmed by levees that were “tragically flawed.”
“The Flood Control Act of 1928 as interpreted over the years gives the United States Army Corps of Engineers virtually absolute immunity, no matter how negligent it might have been in designing and overseeing the construction of the levees,” Duval wrote.
The Flood Control Act gives the U.S. Army Corps of Engineers "virtually absolute immunity, no matter how negligent it might have been in designing and overseeing the construction of the levees,” wrote U.S. District Judge Stanwood R. Duval Jr.
He noted evidence from one Katrina case that showed the Corps had known that widening of the MRGO “endangered the levees” protecting St. Bernard Parish and the Lower Ninth Ward.
Memo: Dangers Known
“Indeed, one memorandum from an agency of the Army Corps of Engineers stated that the resulting losses in the event of a major hurricane could be catastrophic,” the judge wrote.
“Therefore, this very real possibility was known by the Corps for almost 20 years prior to Katrina, and the Corps did nothing to rectify the problem, nor did the Corps issue any specific warning to Congress or the public.
“Notably, the United States did not appeal this Court's findings of fact of its negligent actions in that case.”
Duval said that the Corps “has many excellent and dedicated engineers, supervisors and staff.”
But he added: "I also also note that if individuals, corporations, and bureaucracies are never brought to task for substantial negligence, each will be much less assiduous in discharging their respective duties."