Impact of Mr. GO At Center of Landmark Hurricane Katrina TrialApr 21, 2009 | Parker Waichman LLP
A landmark trial to determine the governments' liability for Hurricane Katrina flooding began this week in federal court in New Orleans. The lawsuit blames the Army Corps of Engineers for much of the destructive flooding that occurred in New Orleans during the historic storm. The plaintiffs in the lawsuit - six hurricane survivors - claim the Corps was negligent in building and maintaining the Mississippi River-Gulf Outlet, allowing Katrina’s storm surge to flood parts of New Orleans and St. Bernard Parish through that waterway.
Nicknamed Mr. GO, the Mississippi Gulf Outlet was built to allow ships easier access between New Orleans and the Gulf of Mexico. In order to build it, the Army Corps of Engineers cut through 76 miles of swamp and wetlands that had once served to protect the Crescent City from destructive storm surges, like the one that accompanied Katrina. In addition, critics of Mr. GO claim that during the storm, the waterway acted as a funnel, and pulled much of Katrina's storm surge into the city.
The Army Corp. had argued that that federal law gives it immunity from lawsuits - a concept called sovereign immunity - and that it properly maintained the waterway. But last month, a federal judge rejected that argument, writing that there were “substantial questions of fact with respect to the actions and inactions that followed the creation of the channel”.
According to ABC News, the Corps is now arguing that federal Flood Control Act shields the government from liability for defective flood-control projects. A legal brief filed by attorneys representing the government also claims the Corps. can't be sued for acting with reasonable care or making a judgment call. The feds also claim that there was nothing defective about Mr. GO, and that there was nothing that could have been done to it that would have lessened Katrina's destruction.
For their part, the plaintiff's claim that because Mr. GO is a navigational waterway, not a flood control project, the Flood Control Act does not relieve the Army Corps of responsibility. The Corps also ignored federal law by failing to inform Congress of the environmental damage caused by the building of Mr. GO, the lawsuit claims.
According to the New York Times, in yesterday's opening session the plaintiffs’ expert witness on geology and the coastal environment, Sherwood M. Gagliano, cited reports from as early as 1957 that claimed the canal would pose a danger to the people of St. Bernard Parish and reports of his own dating from 1972 that warned of the increased flooding risk from wetlands destruction. He also testified that the Corps was aware of such research and even prepared a report in 1988 that mentioned “the possibility of catastrophic damage to urban areas” from Mr. Go. But in spite of such assessments, Gagliano asserted that the Corps did little to reduce the risk.
The outcome of this trial could have huge implications. According to The New York Times, the government has said damages in the suit could reach $100 billion - making it the largest judgment in U.S. history. If the plaintiffs are successful, it would open the door to more litigation, as more than 400,000 similar complaints have been filed against the Corps, the Times said.
According to The New York Times, the trial is expected to last four weeks. It is a non-jury trial, meaning that federal judge, Stanwood R. Duval Jr. will decide the verdict.
Since Hurricane Katrina, Congress has ordered the closure of Mr. GO. In fact, it will be officially closed to boat traffic tomorrow. According to theadvocate.com, the Army Corps of Engineers is building a rock closure on the channel which will consist of 433,500 tons of rocks piled 450 feet wide at the bottom of the structure and 12 feet across at the top.