http://envirolaw.com/liable-katrina-damages/?utm_source=rss&utm_medium=rss&utm_campaign=liable-katrina-damages News and analysis (not advice) by a top Ontario environmental lawyer Fri, 18 May 2012 00:34:33 +0000 hourly 1 http://envirolaw.com/liable-katrina-damages/comment-page-1/#comment-680 DSS Tue, 12 Jan 2010 17:02:07 +0000 http://envirolaw.com/?p=2122#comment-680 Thank you so much, Charles, excellent points! Thank you so much, Charles, excellent points!

]]> http://envirolaw.com/liable-katrina-damages/comment-page-1/#comment-675 Charles Bering Sun, 10 Jan 2010 02:04:00 +0000 http://envirolaw.com/?p=2122#comment-675 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 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

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