The Hurricane Katrina Litigation Against the Corps of Engineers: Is Denial of Geology and Climate Change the Way to Save New Orleans?
43 Pages Posted: 17 Jan 2020
Date Written: 2018
The Hurricane Katrina litigation echoes Rashomon, but with many more unreliable narrators. Each Hurricane Katrina liability story has a grain of truth. All stories are variations on the myth that New Orleans can be restored to a cultural and environmental golden age. In each story, the golden age was stolen by a boogeyman who owes reparations because New Orleans cannot be expected to pay its own way. The boogeyman can be the oil industry, the Corps, FEMA, or an uncaring Congress. Each story is fatally incomplete, ignoring the reality of delta geology and sea level rise from climate change. This article analyzes the story told by plaintiffs' lawyers and federal judges in three litigation threads against the United States Army Corps of Engineers (Corps). There was a ruling for plaintiffs by a sympathetic local federal judge and an initially favorable ruling from the 5th Circuit. Eventually the 5th Circuit, on its own motion, withdrew its favorable ruling and dismissed all the claims. As the article details, the Corps was within its allowable discretion. More fundamentally, this discretion is critical to the Government's ability to make scientifically and economically sound decisions in the face of climate change. The article also reviews the legal procedural hurdles for bringing mass tort claims under the Federal Tort Claims Act and the Flood Control Act of 1928.
Keywords: climate change, sea level rise, Federal Tort Claims Act, FTCA, Flood Control Act of 1928, Hurricane Katrina, damages, torts
JEL Classification: K13, Q54, H54, K41, R11, R14, R38
Suggested Citation: Suggested Citation