The Army Corps of Engineers built a “tragically flawed” levee system for New Orleans – but isn’t liable for claims that excavation work by a government contractor weakened a floodwall and caused it to breach in two places during Hurricane Katrina, a federal judge has ruled.
U.S. District Judge Stanwood Duval Jr. said he can’t hold the Corps or its contractor, Washington Group International Inc., responsible for the 2005 failure of a floodwall meant to protect the city’s Lower 9th Ward and neighboring St. Bernard Parish.
Duval said the floodwall was a “disaster waiting to happen” due to several “anomalies,” including a structural defect. But he ruled that plaintiffs’ attorneys failed to prove the breaches were caused by “uplift pressures” created by WGI’s work.
“The Court cannot and will not find as a certainty what exactly caused these breaches,” he wrote in the ruling, issued on April 12.
Duval held a trial without a jury last year for homeowners’ claims against the Corps and WGI. The Corps argued it was entitled to immunity from the plaintiffs’ claims, blaming the damage on deficiencies in the original design and construction of the floodwall.
For nearly eight years, Duval has presided over a raft of litigation spawned by levee and floodwall failures. He said last week’s decision is likely his last significant ruling in the litigation.
“One central theme has been painfully obvious throughout this entire process; many of the levees protecting New Orleans and the surrounding area were tragically flawed,” Duval wrote.
But the Flood Control Act of 1928 gives the Corps “virtually absolute immunity, no matter how negligent it might have been in designing and overseeing the construction of the levees,” he added.
Duval previously sided with the plaintiffs in a separate case, ruling in 2009 that the Corps’ shoddy work on a shipping channel left the same areas vulnerable to flooding. In that case, Duval concluded the Corps wasn’t entitled to the protections of the 1928 law.
But the 5th U.S. Circuit Court of Appeals reversed itself last year and overturned Duval’s landmark ruling, which had been one of the few legal victories for residents seeking compensation for damage after Katrina.
In his latest ruling, Duval described the Corps as a “bureaucratic behemoth” that is “virtually unaccountable to the citizens it protects.”
Joseph Bruno, one of the lead plaintiffs’ attorneys in the levee litigation, said he was “disgusted.”
“Not with the judge. The judge did his best. Just with the fact that we have a government that is totally unresponsive to what happened here,” Bruno said.
WGI argued that its work didn’t cause the breaches.
“There are a lot of other possible explanations, but that is not one that is scientifically feasible,” WGI attorney William Treeby said. “Blame ought to be put where blame belongs, but it did not belong on Washington International.”
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