I have predicted for years that governments may be liable for damages that will occur when the predictable effects of climate change overwhelm existing infrastructure. Last month, the Eastern District of Louisiana held the US government liable for $719,698 to owners of four homes flooded by Hurricane Katrina, because it had negligently operated and maintained key infrastructure.In Re Katrina Canal Breaches Consolidated Litigation, Judge Duval held that the Army Corps of Engineers had statutory immunity for the design and construction of the Mississippi River Gulf Outlet (MRGO), an artificial waterway for ship traffic from the Gulf of Mexico into New Orleans. However, he ruled that they had no such immunity for the negligent maintenance and operation of the MRGO. The Corps knew for decades that the wake from ship traffic was eroding the soft unprotected banks of the MRGO, and destroying the protective marshes nearby. In addition, the Corps constantly dredged the channel, destroying yet further marshes by dumping the spoil on them. This erosion, the loss of the marshes, and the placement of the spoil combined to both increase the Katrina storm surge and cause the levees to subside. In turn, these two factors caused the collapse of the Reach 2 levee, which led directly to the flooding of St. Bernard Parish.
The Corps is a federal organization. It argued for many years that protection of the soft banks of the MRGO was a joint project, requiring a financial contribution from the local community. As the community refused to make this financial contribution, it was decades before the Corps undertook this protection on its own, in order to keep dredging costs under control. By then, huge areas had been eroded or degraded.
US law on government liability is not the same as our own, but it reflects the same tension between allowing government a reasonable freedom of action for projects in the public interest, and protecting individuals who suffer disproportionately as a result of that government action. Canadian courts would also be likely to hold government liable for negligent operation of a public work that caused substantial damage to individuals. Given the predicted intensity and ferocity of future storms in Canada, governments at all levels should be looking carefully at how they operate and maintain their infrastructure.
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Judge Duval's decision is significant for two reasons: First, he rejected the Corps' argument that the Corps' was not immune from liability because of Congress' failure to fund the necessary maintenance. Ordinarily, decisions that require funding are treated as discretionary policy-making decisions, and therefore immune under the Federal Tort Claims Act, but Judge Duval found that maintenance is not discretionary in spite of the Corps' dependence on Congressional funding. Secondly, Judge Duval found that the Corps had violated non-discretionary duties to report to Congress, imposed on it by the National Environmental Policy Act. As a result, the Corps could not claim that its actions were immune as discretionary decisions. This finding strikes me as having enormous implications — even though the decision would have been the same without it. We'll see what happens on appeal. – Charles Bering, Boston, MA
Thank you so much, Charles, excellent points!