The federal government is not liable for Hurricane Katrina flood damage, an appeals court ruled Friday in a major case that's likely to affect other litigation over flooding tied to natural disasters.
The court ruled that Louisiana property owners failed to prove the construction and maintenance of the 76-mile Mississippi River-Gulf Outlet (MRGO) channel caused flood-related losses during the 2015 storm. MRGO channel was built in the 1960's by the Army Corps of Engineers as a shorter shipping route between the Port of New Orleans and the Gulf of Mexico.
During Katrina in 2005, the was breached resulting in catastrophic flooding in New Orleans's Lower 9th Ward and St.Bernard Parish. The original 2015 lawsuit claimed the Corps was responsible for the flooding due to poor construction of the channel and inadequate maintenance, such as reinforcing banks or repairing erosion. Judge Susan Braden agreed, saying the channel was 'a ticking time bomb' and that the Corps should have realized the channel's design, upkeep and operation would fail. Braden awarded compensation to the suit's plaintiffs in 2015.
However, Friday's decision by Judge Timothy Dyk of the U.S. Court of Appeals for the Federal Circuit reversed the 2015 ruling.
Dyk wrote that the Corps and the U.S. could only be held responsible for the flooding if they had taken affirmative actions that resulted in the breach. "The failure of the government to properly maintain the MRGO channel or to modify the channel cannot be the basis of liability." (Ruling available here) The plaintiffs did not present evidence showing that flooding had been worse compared to if there had been no government action at all, he wrote.
"The result is that the plaintiffs failed to take account of other government actions ... that mitigated the impact of MRGO and may well have placed the plaintiffs in a better position than if the government had taken no action at all," the opinion says.
In Monday's E&E News post, In Reversal, Court Rules U.S. Not On Hook For Katrina Damage, Amanda Reilly writes this new finding will likely have an impact on impending cases involving last year's Houston flooding during Hurricane Harvey and flooding in Nebraska, Missouri, Kansas and Iowa.
Read the Times-Picayune/NOLA.com report here.