Flood Damage Liability: Case Study on Industrial Canal & Federal Tort Claims Act, Schemes and Mind Maps of Law

Download Flood Damage Liability: Case Study on Industrial Canal & Federal Tort Claims Act and more Schemes and Mind Maps Law in PDF only on Docsity! Richards Final.docx (DO NOT DELETE) 2/10/2012 9:50 AM (267) ESSAY THE HURRICANE KATRINA LEVEE BREACH LITIGATION: GETTING THE FIRST GEOENGINEERING LIABILITY CASE RIGHT EDWARD P. RICHARDS † INTRODUCTION In August 2005, Hurricane Katrina flattened the Gulf Coast from the Alabama border to 100 miles west of New Orleans. The New Or- leans levees failed, and much of the city was flooded. More than 1800 people died,1 and property damage is estimated at $108 billion.2 While Katrina was not the most deadly or expensive hurricane in U.S. history, it was the worst storm in more than eighty years and destroyed public complacency about the government’s ability to respond to disasters. The conventional story of the destruction of New Orleans is that the levees broke because the Army Corps of Engineers (Corps) did not design and build them correctly. The district court’s holding in In re Katrina Canal Breaches Consolidated Litigation (Robinson),3 dis- † Clarence W. Edwards Professor of Law and Director, Program in Law, Science, and Public Health at the Louisiana State University Law Center. Email: rich- ards@law.lsu.edu. For more information, see http://biotech.law.lsu.edu. Thanks to Kathy Haggar and Kelly Haggar of Riparian, Inc., a wetland consulting firm in Baton Rouge, Louisiana, for research assistance in geology and coastal geomorphology. 1 RICHARD D. KNABB ET AL., NAT’L HURRICANE CTR., TROPICAL CYCLONE RE- PORT: HURRICANE KATRINA 11 (2005), available at http://biotech.law.lsu.edu/ katrina/govdocs/TCR-AL122005_Katrina.pdf. 2 Id. at 13. 3 647 F. Supp. 2d 644 (E.D. La. 2009). Norman Robinson was one of the plaintiffs in the exemplar case for this thread of the Katrina litigation, and the court refers to these cases as the Robinson cases. The litigation has generated more than 200 orders and judicial documents. See generally Katrina Canal Breaches Consolidated Litigation: Cur- Richards Final.docx (DO NOT DELETE) 2/10/2012 9:50 AM 268 University of Pennsylvania Law Review PENNumbra [Vol. 160: 267 cussed below, asserts that the Corps was negligent—and implies that it was even malicious4—in putting New Orleans at risk and that it is liable for the damages.5 But it is also true that New Orleans, like many coastal cities, is the victim of ocean rise and geology.6 Levees create false security and prevent rational adaptations, worsening catastrophes when they fail. Exclusively relying on levees in the future will cause untold fiscal and environmental damage, while providing little long-term safety. This Essay argues that conceptualizing the destruction of New Or- leans as a negligent or intentional failure of the Corps is mistaken and will continue the cycle of catastrophic flooding in New Orleans. The implications of this mistake, however, reach far beyond New Orleans. Levees are the original geoengineering projects—large-scale manipu- lations of Earth’s environment intended to mitigate the consequences of climate. Thus, the Katrina levee breach litigation is the first in an upcoming wave of climate geoengineering litigation.7 The stakes are high—if the Katrina plaintiffs prevail, then the litigation will drive geo- engineering solutions for all coastal cities. This Essay examines these issues by looking at the courts’ response to the levee breach caused by Hurricane Katrina, focusing on Robin- son—a case in which the court ignored statutory immunity and blamed the Corps for the damage. This and other courts’ misdirection of blame—from the climate to the Corps—creates precedent for liability that will lead to unhelpful and even dangerous geoengineering projects as more and more of the United States faces rising ocean water. rent Developments, U.S. DISTRICT COURT, E. DISTRICT OF LA., http://www.laed. uscourts.gov/CanalCases/CanalCases.htm (last visited Jan. 15, 2012). 4 647 F. Supp. 2d at 707 (“Furthermore, the Corps not only knew, but admitted by 1988, that the [Mississippi River Gulf Outlet] threatened human life . . . and yet it did not act in time to prevent the catastrophic disaster that ensued with the onslaught of Hurricane Katrina.” (internal citations omitted)). 5 Id. at 733. 6 See Roy K. Dokka, The Role of Deep Processes in Late 20th Century Subsidence of New Orleans and Coastal Areas of Southern Louisiana and Mississippi, 116 J. GEOPHYSICAL RES. B06403, at 1 (2011). 7 A levee is a gently sloping hill of clay built by piling clay, compacting it, and then piling more clay. See Yingzi Xu, Jaideep Chatterjee & Farshad Amini, A Comparative Slope Stability Analysis of New Orleans Levee Subjected to Hurricane Loading, 16 ELECTRONIC J. GEOTECHNICAL ENGINEERING 325, 330-31 (2011), available at http://www. ejge.com/2011/Ppr11.022/Ppr11.022ar.pdf (showing a typical cross-section of a lev- ee). The levee must be impervious to water to function. Cf. id. Richards Final.docx (DO NOT DELETE) 2/10/2012 9:50 AM 2012] The Hurricane Katrina Levee Breach Litigation 271 statutory waiver of sovereign immunity in the Federal Tort Claims Act (FTCA).18 The FTCA requires that the plaintiffs first exhaust their rem- edies in an administrative compensation system. Once in court, they also must prove their case under the restrictions of the FTCA. The Katrina flooding cases face an additional hurdle because the Flood Control Act of 1928 (FCA) provides the United States statutory immunity for any claims based on flooding.19 Thus, before going to trial on the merits, any plaintiffs in a case against the government based on flood damage must survive summary judgment for FCA im- munity, exhaust their remedies with the Corps, and then prove their case under the stricture of the FTCA at trial. This sequence will be followed in analyzing these cases. A. The Flood Control Act of 1928 The Mississippi River flood of 1927 was the most disastrous on rec- ord and prompted Congress to pass the FCA.20 The objective of this Act, and its subsequent renewals, was to finish the job of leveeing and damming the Mississippi and to create alternative paths for flood waters to minimize future flooding disasters.21 The key provision of the FCA for the Katrina cases is the immunity provision, § 702c, which states, “No lia- bility of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place . . . .”22 Congress included this immunity provision because of its experi- ence with Mississippi River flood control,23 recognizing that while lev- ees prevent yearly flooding, they also can cause greater disasters when they fail.24 This immunity provision should have ended all the Katrina tort litigation against the Corps. United States, 75 Fed. Cl. 700, 802-03 (Fed. Cl. 2007). The case was initially stayed, awaiting the outcome of Robinson. But although Robinson was decided more than two years ago, the case did not go to trial until December 2011, and the court has not yet released its opinion. See St. Bernard Parish v. United States, 99 Fed. Cl. 765, 771 (Fed. Cl. 2011) (denying the government’s motion to stay proceedings indefinitely). 18 28 U.S.C. § 1346(b) (2006); see also id. § 2680(h). 19 See 33 U.S.C. § 702c. 20 For a general history, see JOHN M. BARRY, RISING TIDE: THE GREAT MISSIS- SIPPI FLOOD OF 1927 AND HOW IT CHANGED AMERICA (1997). 21 National Mfg. Co. v. United States, 210 F.2d 263, 270 (8th Cir. 1954) (describing the FCA and its renewal in 1936). 22 33 U.S.C. § 702c. 23 For a history of Mississippi flood control efforts before the passage of the FCA, see Jackson v. United States, 230 U.S. 1, 3-8 (1913). 24 Cf. Stover v. United States, 332 F.2d 204, 207 (9th Cir. 1964) (“It may be that morally and financially the plaintiffs have been grievously wronged by their govern- Richards Final.docx (DO NOT DELETE) 2/10/2012 9:50 AM 272 University of Pennsylvania Law Review PENNumbra [Vol. 160: 267 The passage of the FTCA created a vehicle for bringing claims that implicated § 702c. The Eighth Circuit in National Manufacturing Co. v. United States held that the FTCA did not abrogate § 702c, finding that it preempted only the specific list of laws that were part of its text.25 The early cases focus on the nature of the water and ask whether it was part of a natural flood.26 Not until Hurricane Betsy in 1965 did a court face the first large-scale flooding case, Graci v. United States.27 B. Graci v. United States The Fifth Circuit in Graci found that the then–newly complete MRGO—originally constructed as a shipping canal—was a conduit that allowed storm surge from Hurricane Betsy to flood eastern New Orleans and St. Bernard Parish.28 The Graci court broke with the pre- vious focus on the nature of the water, and focused instead on the flood control structure, finding that the purpose of § 3 was to place a limit on the amount of money that Con- gress would spend in connection with flood control programs. Congress undoubtedly realized that the cost of extensive flood control projects would be great and determined that those costs should not have added to them the floodwater damages that might occur in spite of federal flood control efforts. . . . The question then becomes whether it is reasonable to suppose that in exchange for its entry into flood control projects the United States de- manded complete immunity from liability for the negligent and wrongful acts of its employees unconnected with flood control projects. 29 ment; that in protecting others it injured them. It is not committed to us to remake the statute. That the limitation should happen to be in the statute is understandable. Appropriations for flood control do not come automatically. Dozens of congressmen have no flood control problems. Perhaps, as a condition to their consent to flood con- trol appropriations, they impose such limitations as § 702c.”). 25 210 F.2d at 274 (“The Act contains a list of the statutes which it declares ‘are hereby repealed’ . . . and the list so expressly repealed does not include Section 3 of the 1928 Act.” (internal citations omitted)). 26 See Stover v. United States, 204 F. Supp. 477, 483 (N.D. Cal. 1962) (“[I]t is of no consequence how negligent the Government may (or may not) have been, if it be shown that the inundations, even in part, resulted from, and were actually caused by, such natural forces.”); Guy F. Atkinson Co. v. Merritt, Chapman & Scott Corp., 126 F. Supp. 406, 408 (N.D. Cal. 1954) (“[T]his Court is of the opinion that [§ 702c’s] pur- pose was to prevent the Government from being held liable for the staggering amount of damage caused by natural floods, merely because the Government had embarked upon a vast program of flood control . . . .”). 27 456 F.2d 20 (5th Cir. 1971). 28 Id. at 22. 29 Id. at 25-26. Richards Final.docx (DO NOT DELETE) 2/10/2012 9:50 AM 2012] The Hurricane Katrina Levee Breach Litigation 273 The court then concluded that it would be unreasonable to assume that Congress intended for FCA immunity to reach projects that were not designed for flood control.30 Since the MRGO was strictly a navi- gation canal, the court ruled that § 702c did not apply and remanded so that the FTCA case could go forward.31 While the government ob- jected to this reading of the FCA, it did not appeal because it prevailed at summary judgment on remand.32 This ruling ignored the symmetry of flood control decisions: flood control plans are as much about which levees and structures are not built as those that are built. By abrogating immunity for flooding re- lated to navigation systems, Graci opens the Corps to liability for flood damage associated with any Corps project not defined as a flood con- trol project. This forces the Corps to build flood control systems on all Corps-constructed navigation systems that could be subject to flooding—and thus flood land that would not otherwise have flood- ed.33 The district court in Graci found that the MRGO was properly constructed and dismissed the claims. But that left open the attack on the Corps’ decisionmaking that we see in Robinson, and gave the court the freedom to transform a legal issue into a factual determination that is difficult to overturn on appeal. To protect against future flood- ing, the Corps immediately built the flood control levees between the MRGO and all the populated areas of New Orleans and St. Bernard Parish that are at issue in Robinson. C. Central Green v. United States While a number of cases cite Graci, none actually follows its hold- ing and abrogates § 702c immunity for damages caused by flood wa- ters in the absence of a flood control structure.34 The United States 30 Id. at 26. 31 Id. at 27-28. 32 On remand, the district court held that the plaintiffs had not shown that the Corps had been negligent or that the MRGO caused the damage to their property. Graci v. United States, 435 F. Supp. 189, 196 (E.D. La. 1977). 33 For example, by leveeing the Mississippi, the level of the river is raised higher during floods than it would otherwise be. This causes water to back up into tributary streams during a flood because the Mississippi becomes higher than the tributaries. This was a major source of flooding during the Mississippi River flood of 2011. 34 See, e.g., United States v. James, 478 U.S. 597, 612 (1986) (following a “plain lan- guage” approach to interpreting § 702c); Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1977) (discussing differences between National Manufacturing and Graci, but ultimately remanding because of ripeness considerations); Fla. E. Coast Ry. Co. v. United States, 519 F.2d 1184, 1191 (5th Cir. 1975) (applying § 702c to “‘floods or flood waters’ in connection with flood control projects” (quoting Graci, 456 F.2d at 25-27)); Richards Final.docx (DO NOT DELETE) 2/10/2012 9:50 AM 276 University of Pennsylvania Law Review PENNumbra [Vol. 160: 267 dismissal was reversed, and the case was remanded to determine the character of the water that caused the damage.56 When Central Green came down, it appeared that Graci had been overruled. Graci was a pure case of damage caused by flood waters, yet the Fifth Circuit did not apply § 702c because there was no flood con- trol structure. Central Green’s test of considering the “character of the waters that cause the relevant damage rather than the relation be- tween that damage and a flood control project” seems to mandate the application of § 702c to cases involving a hurricane that floods an area with its massive storm surge.57 Yet, as we will see, the court in Robinson managed to find that § 702c did not apply. D. The Robinson Pre-Trial Motions Robinson deals with the Katrina flooding adjacent to the MRGO.58 The Robinson facts are almost identical to those in Graci. The plain- tiffs in both cases argued that the MRGO funneled storm surge into the city, exacerbating flooding of the same areas, occupied in some cases by the same people. The difference is that the Corps built flood control levees between the city and the MRGO after the flood- ing in 1965.59 Thus, any flooding that damaged the city’s most popu- lated areas would all but certainly have passed through or over a flood control structure. 1. FCA Immunity The Robinson plaintiffs built their case on Graci. They argued that the Corps was negligent in the construction and post-construction maintenance of the MRGO, and that since Graci—decided by the same court decades earlier—found that the MRGO had nothing to do with flood control, § 702c did not apply.60 The court accepted this theory but was left with the problem of how to classify the water spilling over and through those flood control levees without triggering § 702c. 56 Id. at 437. 57 Id. 58 In re Katrina Canal Breaches Consol. Litig. (Robinson), 471 F. Supp. 2d 684, 686 (E.D. La. 2007). I will first discuss the opinion rejecting the government’s motion to dismiss based on § 702c, and then I will return to the opinion from the trial. 59 By 1962, these levees had been planned, but construction was not completed un- til after Hurricane Betsy flooded New Orleans in 1965. In re Katrina Canal Breaches Consol. Litig. (Robinson), 647 F. Supp. 2d 644, 651-52 (E.D. La. 2009). 60 Robinson, 471 F. Supp. 2d at 690. Richards Final.docx (DO NOT DELETE) 2/10/2012 9:50 AM 2012] The Hurricane Katrina Levee Breach Litigation 277 Even reading Central Green to preserve Graci, it seemed that the confluence of flood waters from Hurricane Katrina that breached flood control structures would trigger § 702c immunity. But if the court recognized this, then it would not be able to make the Corps pay for failing to protect New Orleans.61 The judge, therefore, set about redefining the problem as one that had nothing to do with flood con- trol projects: For example, would the United States be immune for all damages if a Navy vessel lost control and broke through [a] levee where the sole cause of the failure of that levee was the Navy vessel's negligence? Thus, contra- ry to the Government’s contention that Central Green broadens the immun- ity provided by [§] 702c, in reality Central Green requires the Court to identify the cause of the damage rather than base a decision on the mere fact that a flood control project was involved. Central Green does not directly answer the question of what nexus to a flood control project is required for floodwaters to trigger immunity.62 The court goes on to say that the instant case is “very much like” Central Green—“while arguably the immediate cause of the damage was indeed ‘floodwaters,’ the caus[e] for such floodwaters[’] force and breadth [is] alleged to have been the defalcations of the Government with respect to the MRGO.”63 By ignoring Central Green’s clear statement that the courts should look to the “character of the waters”64 and looking instead at the na- ture of the damage, the court read the importance of the flood waters out of its § 702c analysis and denied summary judgment on the § 702c motion to allow further discovery by the plaintiffs. By denying im- munity, the court shifted the focus from the law to the Corps—a move that will allow emotion to dictate that the Corps will lose. 2. The FTCA Claims The tort law of the state where the incident occurs supplies the substantive law for making out a prima facie case under the FTCA.65 61 Reading the series of opinions and orders in this case makes it clear that the judge, a life-long coastal Louisiana resident, was furious about what, in his view, the Corps allowed to happen. This view is shared by many in Louisiana, Republicans and Democrats alike. It reflects the deep-seated view that the federal government has a duty to protect coastal communities against flooding, without regard to cost or the fecklessness of local land use decisions. 62 Robinson, 471 F. Supp. 2d at 695. 63 Id. 64 531 U.S. 425, 437 (2001). 65 Molzof v. United States, 502 U.S. 301, 305 (1992). Richards Final.docx (DO NOT DELETE) 2/10/2012 9:50 AM 278 University of Pennsylvania Law Review PENNumbra [Vol. 160: 267 The FTCA itself provides a substantive defense, discretionary authority immunity: if the agency is making a discretionary choice of action, then even if it makes a bad choice, it is immune from suit.66 Since the plaintiffs and the judge in Robinson felt bound by Graci, it is instructive to look at what the trial judge in Graci decided about the plaintiffs’ FTCA claims when he reviewed the case on remand.67 He found that under Louisiana law, the United States would be liable for its acts and negligence, if any, in the construction of the MRGO to the extent that they caused damages.68 He also found that Congress au- thorized the MRGO, that plaintiffs had not shown that the Corps deviated from the project Congress envisioned, and that the plain- tiffs did not show any negligence in the “design, construction or functioning of said project.”69 These findings are relevant because the plaintiffs in Robinson allege that design decisions made in the 1950s showed that the Corps knew that the banks of the MRGO should have been armored.70 This ar- gument is then bolstered by references to a 1963 report from the Board of Engineers for Rivers and Harbors that also called for riprap (i.e., rock used to armor the shoreline) along the MRGO.71 The court concludes that this is evidence that the negligent failure to use riprap was associated with the MRGO, and not with the flood control plan.72 The plaintiffs and the court seem determined to refight Graci, but to reach a different outcome. 66 28 U.S.C. § 2680(a) (2006). For example, in Allen v. United States, the plaintiffs proved at trial that the government knowingly chose to do above-ground nuclear weapons testing, aware that it would expose communities downwind to dangerous nu- clear fallout, which did in fact cause injuries. 588 F. Supp. 247, 404 (D. Utah 1984). The appeals court was clear that this showing did not trigger liability: It is irrelevant to the discretion issue whether the [Atomic Energy Commis- sion] or its employees were negligent in failing to adequately protect the pub- lic. When the conduct at issue involves the exercise of discretion by a government agency or employee, § 2680(a) preserves governmental immunity “whether or not the discretion involved be abused.” For better or worse, plain- tiffs here “obtain their ‘right to sue from Congress [and] necessarily must take it subject to such restrictions as have been imposed.’” Allen v. United States, 816 F.2d 1417, 1421-22 (10th Cir. 1987) (quoting Dalehite v. United States, 366 U.S. 15, 31 (1953)). 67 Graci v. United States, 435 F. Supp. 189 (E.D. La. 1977). 68 Id. at 195-96. But he also found that the MRGO had no effect on the flooding. Id. 69 Id. at 196. 70 In re Katrina Canal Breaches Consol. Litig. (Robinson), 647 F. Supp. 2d 644, 654 (E.D. La. 2009). 71 Id. at 656. 72 See infra text accompanying note 87. Richards Final.docx (DO NOT DELETE) 2/10/2012 9:50 AM 2012] The Hurricane Katrina Levee Breach Litigation 281 The court then provided a history of the MRGO and the Lake Pontchartrain and Vicinity Hurricane Protection Plan (LVP), the plan set in motion by Congress in 1955 after a series of hurricanes flooded New Orleans.86 The presentation of this history reads like a traditional tort case against a private party: Buried in various Corps’ reports some of which are discussed, infra, are unequivocal, positive statements that underscore the Corps’ knowledge that the MRGO would not be a static, unchanging waterway. It was clear from its inception that because of its location, degradation of the area would result unless proper, prophylactic measures were taken. In fact, some measures were included in the Corps’ plans; they simply were not im- plemented in time to prevent immense environmental destruction.87 In other words, the Corps had notice and knowledge, and made a decision not to act on the knowledge. In a private tort action, this would prove intentional wrongdoing and might support punitive damages. But in a FTCA case, it proves that the agency acted inten- tionally, knowing the consequences of its action—the clearest proof of a discretionary choice.88 The judge then proceeds to transform Hurricane Katrina’s flood waters into his Navy vessel. He sees a major problem with the Corps’ failure to armor the sides of the MRGO with rock to prevent erosion and widening.89 While the decision whether to armor a channel to protect a flood levee would seem to fall directly under § 702c, in this court’s view that decision was part of the (nonimmune) decisionmak- ing about the MRGO. In response to the government’s evidence that the levee failed and was overtopped because it was not constructed at the design height, a pure § 702c decision, the court responded that if “the Navy vessel ran into a papier mâché levee, the vessel would still be a substantial factor in the damage.”90 The court concluded that the failure to prevent the natural widen- ing of the MRGO hastened the destruction of the flood control levee 86 Id. at 649-53. For much of the history, the court relies on a Corps report, DOUGLAS WOOLLEY AND LEONARD SHABMAN, DECISION-MAKING CHRONOLOGY FOR THE LAKE PONTCHARTRAIN & VICINITY HURRICANE PROTECTION PROJECT (2008). 87 Robinson, 647 F. Supp. 2d at 653. 88 See id. at 666 (“As to the north shore, the callous and/or myopic approach of the Corps to the obvious deleterious nature of the MRGO is beyond understanding.”) 89 See id. at 697 (“This Court is utterly convinced that the Corps’ failure to provide timely foreshore protection doomed the channel to grow to two to three times its de- sign width and destroyed the banks which would have helped to protect the Reach 2 Levee from front-side wave attack as well as loss of height.”). 90 Id. at 692. Richards Final.docx (DO NOT DELETE) 2/10/2012 9:50 AM 282 University of Pennsylvania Law Review PENNumbra [Vol. 160: 267 during the hurricane.91 Thus, the MRGO becomes the Navy vessel.92 We are left with flood water breaching a flood control levee—due to known risks that were assessed by the Corps as part of a flood control plan—being excluded from § 702c immunity. The FTCA discretionary authority defense was disposed of by find- ing that the Corps violated various questionable duties. These include a duty to ask Congress for money93 and a failure properly to assess the MRGO’s risks to wetlands in a 1976 environmental impact statement under the National Environmental Policy Act.94 None of these alleged breaches of duty is relevant to the Corps’ authority. The court ignores the pages of evidence that the Corps knowingly and intentionally weighed the facts and chose its course of action. Robinson was a test case. Evaluating the strength of legal arguments with a few typical plaintiffs, and following the plaintiffs’ success, their advocates moved to certify a class and start the process of allocating damages.95 Class certification requires a level of commonality between plaintiffs.96 The FTCA requires exhaustion of administrative remedies by each plaintiff, which requires the plaintiff to give the agency notice of the claim and the requested compensation.97 The plaintiff cannot go to court until the agency either denies the claim or does not act on the claim notice for six months. The plaintiff must bring the action within six months of the agency’s final denial of the claim.98 This no- tice must be provided within two years of the injury.99 Because the district court reviews the exhaustion requirement de novo, it is gener- ally assumed that there can be no FTCA class actions—as the govern- ment argued to the court in objecting to class certification.100 The court, however, found that the notice and exhaustion requirements posed no bar to class certification,101 thus creating what may be the 91 Id. at 697-98. 92 Id. at 698 (“The Corps’ ‘Navy vessel’ devastated this levee.”). 93 Id. at 663 (“Never was any direct funding approach taken even when the Corps knew it had triggered catastrophic erosion caused by the very channel it had created.”). 94 Id. at 725. 95 In re Katrina Canal Breaches Consol. Litig., No. 05-4182, 2010 WL 487431, at *13 (E.D. La. Feb. 2, 2010). 96 FED. R. CIV. P. 23(a)(2). 97 28 U.S.C. § 2675 (2006). 98 28 U.S.C. § 2401(b). If the agency does not act on the claim, § 2401(a) would likely control, giving the plaintiff up to six years from the injury to file. 99 Id. 100 In re Katrina Canal Breaches Consol. Litig., No. 05-4181, 2009 WL 1649501, at *2-4 (E.D. La. June 9, 2009). 101 Id. at *2-*5. Richards Final.docx (DO NOT DELETE) 2/10/2012 9:50 AM 2012] The Hurricane Katrina Levee Breach Litigation 283 first FTCA class action.102 The court then concluded that the original Robinson petition provided constructive notice to the Corps that addi- tional plaintiffs would be filing cases.103 Under this reasoning, once a plaintiff has met the exhaustion requirements and filed an FTCA ac- tion, the action itself would become a shortcut for adding new claims against the agency, opening the door to greater liability and more strongly incentivizing ineffective governmental responses to climate change. III. COASTAL SCIENCE The irony of Robinson is that the plaintiffs and the government are not really adverse parties. The plaintiffs, the judge, and the Corps share a belief that the answer to coastal flooding is bigger and better levees. The scientific defense to the claims in Robinson is simple and well documented: coastal Louisiana in general, and New Orleans in particular, are being inundated by the combination of subsidence and ocean rise.104 The Corps cannot admit this because it would under- mine its levee and flood wall–based solutions. If the problem is inun- dation, then there is no denying that building flood control structures will lead to the eventual drowning of the wetlands between the levee and the sea. Since the Corps is also charged with protecting these wet- lands, it would be put in an impossible political and legal position. More fundamentally, a Congress that cannot come to a consensus about climate change is unlikely to stop funding politically popular levees. 102 The court in Kantor v. Kahn found that there had not been an FTCA class action as of 1979. 463 F. Supp. 1160, 1162 (S.D.N.Y 1979). Though an FTCA class action is perhaps not impossible, a search of the legal databases and the major treatise on FTCA litigation has not identified a reported FTCA class action. See 3 LESTER S. JAYSON & ROBERT C. LONGSTRETH, HANDLING FEDERAL TORT CLAIMS § 17.05 (2011). The more restrictive commonality requirements in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2154 (2011), cast further doubt on the viability of an FTCA class action. Similar mass claims actions have been tried as consolidated actions with named plaintiffs, not class actions. See, e.g., Allen v. United States, 588 F. Supp. 247, 258 (D. Utah 1984). 103 In re Katrina Canal Breaches Consol. Litig., No. 05-4182, 2010 WL 487431, at *12 (E.D. La. Feb. 2, 2010) (“Thus, any argument that once these plaintiffs filed their Mas- ter Complaint, they were precluded from enlarging their claims within the two year period is without merit. Indeed, given the facts as presented herein, plaintiffs’ claims can be deemed exhausted because more than six months [have] passed since the 2007 complaint was filed placing the Corps on notice that the [East Bank Industrial Area] claim was being made by these three plaintiffs . . . .”). 104 See generally Arthur E. Berman, The Anatomy of a Silent Disaster: Ongoing Subsidence and Inundation of the Northern Margin of the Gulf of Mexico Basin: An Interview with Dr. Roy Dokka, HOUS. GEOLOGICAL SOC’Y BULL., Feb. 2005, at 31. Richards Final.docx (DO NOT DELETE) 2/10/2012 9:50 AM 286 University of Pennsylvania Law Review PENNumbra [Vol. 160: 267 from levee failure. While levees are seen as protection against hurri- canes,116 the experiences with Katrina and Betsy indicates otherwise. IV. ROBINSON AND THE GEOENGINEERING SOLUTION The Louisiana Coastal Restoration Plan—centered around a plan to build levees—will not solve the problems of relative ocean rise and the increased risk that hurricanes pose to the more vulnerable land. It is politically attractive because it sounds environmentally friendly117 and can attract federal dollars into the local economy. Unfortunately, the focus is always on levees. A good example of the levee strategy is the Morganza, Louisiana, to the Gulf of Mexico Risk Reduction Pro- ject.118 These projects start small, with low, “relatively” cheap levees, which are then seen as inadequate in the face of the storm threat. Pressure then mounts to raise and strengthen the levees, and the cost and damage to the environment explodes. The Robinson ruling exacerbates the existing over-reliance on lev- ees. Returning to the Graci requirement of a flood control structure for § 702c, rather than the Central Green flood waters test, gives the Corps no § 702c immunity unless it builds a levee. It cannot choose to forego a levee in favor of adaptation and mitigation and be protected by § 702c. The Robinson court transformed the Corps’ knowledge of risks about flooding from a discretionary authority defense into an un- protected liability. This makes a mockery of both § 702c and the discre- tionary authority defense. The Corps and other government agencies are observing and documenting the increasing risk of flooding due to the destruction of coastal topography on every coast. Since almost all coastal areas have Corps-permitted and Corps-maintained canals and harbors, will all of these become Navy vessels with the next hurricane? 116 See infra Part IV. 117 In fact, these levees will destroy all the wetlands between themselves and the Gulf: as the ocean rises, the levees stop the upslope retreat of the wetlands from the coast side, causing the wetlands to slowly disappear. For a graphic illustrating the process, see gen- erally COMM. ON ENG’G IMPLICATIONS OF CHANGES IN RELATIVE MEAN SEA LEVEL, NAT’L RESEARCH COUNCIL, RESPONDING TO CHANGES IN SEA LEVEL: ENGINEERING IMPLICA- TIONS 70 (1987), available at http://www.nap.edu/openbook.php?record_id=1006& page=70. Every national and local environmental group should be fighting levee pro- jects, but they have been seduced by the myth of coastal restoration. 118 See Morganza to the Gulf of Mexico Risk Reduction Project: Fact Sheet, U.S. ARMY CORPS OF ENGINEERS, http://www.mvn.usace.army.mil/prj/mtog/project_fact_sheet ___morganza.asp (last visited Jan. 15, 2012) (describing the project). Richards Final.docx (DO NOT DELETE) 2/10/2012 9:50 AM 2012] The Hurricane Katrina Levee Breach Litigation 287 CONCLUSION The Robinson case is bad law promoting bad science. By failing to dismiss the case at the first instance under § 702c, the court gave the plaintiffs a forum for bad science and generated endless media cover- age on this science. By ruling for the plaintiffs, and fully endorsing their arguments in its opinion, the court has put its imprimatur on that science.119 It has fueled the national myth that New Orleans would have been fine but for the failures of the Corps. That myth has already driven billions of dollars in new levee construction and helped prevent meaningful mitigation of future risks to man and the envi- ronment on the Louisiana coast. It should be reversed, and Graci should be clearly overruled. Preferred Citation: Edward P. Richards, Essay, The Hurricane Katrina Levee Breach Litigation: Getting the First Geoengineering Liability Case Right, 160 U. PA. L. REV. PENNUMBRA 267 (2012), http://www. pennumbra.com/essays/2-2012/Richards.pdf. 119 Sophisticated litigators and scholars know that even in the best of cases, court- room science is questionable because of the expert witness system. This is not the best of cases, and the public and politicians should not believe that once something is in the legal reports, it is true.