Summary of holding
The court minced no words in its condemnation of the Corps’ mismanagement of the MRGO: “Thus, it is clear from the testimony and documentary evidence that the Corps knew at least from the early 1970’s that the MRGO was endangering the Chalmette Unit Reach 2 Levee. . . the callous and/or myopic approach of the Corps to the obvious deleterious nature of the MRGO is beyond understanding.” [*665-66]. After a lengthy analysis of the science and history of the MRGO and Hurricane Katrina, the court concludes the negligent mismanagement of the MRGO project was a substantial and foreseeable cause of the catastrophic breach of a levee, which led to some of the plaintiffs’ homes flooding. Having established causation sufficient to hold the government liable to three of the seven plaintiffs, the court then turns to assessing defenses available to the U.S.
Following Central Green, the government, to be immune from suit for its negligence with respect to the MRGO, needed to show that this project was intended for flood management. The court concludes from the record that there was no substantial flood-control purpose underlying the MRGO shipping channel, thereby distinguishing it from other federal projects in the region, such as the construction of levees and management of other bodies of water. The Court of Appeals affirmed this portion of the District Court’s judgment, extinguishing any claim for immunity under the FCA.
The court then turns to analysis of the FTCA, which grants the government broad immunity from suits based on its discretionary functions. The District Court finds that the Corps’ failure to maintain the MRGO went beyond a mere failure of policy discretion in fulfilling its mandate but constituted a lack of due care in carrying out a specifically delegated ministerial duty. The Court of Appeals disagreed with this analysis, thereby immunizing the government from liability against all plaintiffs.
Potential takeaways for future climate migration litigation
- Most internal climate displacement in the United States in coming decades is likely to be a result of major natural disasters, such as Hurricane Katrina. The In re Katrina cases demonstrate the difficulties facing U.S. citizens hoping to obtain judicial compensation, so they can relocate or rebuild following severe loss and damage. Even when the U.S. government fails to protect against foreseeable catastrophes – such as the levees breaching in New Orleans, or wildfires exploding across mismanaged forests – it is granted broad immunity from suit, via statutes such as the FTCA and FCA. Out of hundreds of Katrina plaintiffs, seven made it to trial. Of those seven, three won at the District Court level by relying on a delicate argument that the government had bungled a project unrelated to flood maintenance. All three of those judgments were reversed on appeal.
- The Fifth Circuit is notoriously conservative and among the least likely to be amenable to suits for relief from the impacts of climate change, including displacement and damage. However, these issues of excessive governmental immunity pervade U.S. jurisprudence. For instance, the Supreme Court in Central Green limited a ruling from the Ninth Circuit, which would have effectively stopped all suits against the U.S. government arising from flood damage; it is far from clear that today’s more conservative Supreme Court would have issued such a limitation.