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In re Katrina Canal Breaches Consol. Litig.

ELR Citation: 39 ELR 20264
Nos. No. 05-4182, (E.D. La., 11/18/2009)

A district court held that the U.S. Army Corps of Engineers is liable to five homeowners and business under the Federal Tort Claims Act (FTCA) for damages they incurred in the aftermath of Hurricane Katrina. The Corps' negligent failure to properly maintain and operate the Mississippi River Gulf Outlet (MRGO) was a substantial cause for the fatal breaching of one of its levees and the subsequent catastrophic flooding that occurred, and the plaintiffs' claims fall under the FTCA. The due care exception to the FTCA does not apply since due care was clearly absent in the Corps' actions. For example, the Corps recognized the need for foreshore protection of the MRGO as early as 1967 yet did not act on that knowledge. Similarly, the discretionary function exception does not apply since the Corps violated the mandated requirements set forth in NEPA. Not only was its 1976 EIS "fatally flawed," plaintiffs presented substantial, clear and convincing evidence that the Corps itself internally recognized that the MRGO was causing significant changes in the environment—the disappearance of wetlands adjacent to the MRGO and the effects thereof on the human environment—that triggered subsequent reporting requirements. Even if there was no mandate, the Corps was not acting on policy, as the Corps's defalcations with respect to the maintenance and operation of the MRGO were in direct contravention of professional engineering and safety standards. In sum, for over 40 years, the Corps was aware that the levee was going to be compromised by the continued deterioration of the MRGO. The Corps had an opportunity to take a myriad of actions to alleviate or rehabilitate this deterioration but failed to do so. The Corps was therefore ordered to pay the plaintiffs a combined total of over $700,000 in damages.