A new report from the National Research Council on Friday slams a long-delayed Army Corps of Engineers hurricane protection study, saying it fails to recommend a unified, comprehensive long-term plan for protecting New Orleans and the Louisiana coast.
You know the story: as Hurricane Katrina swept across New Orleans, the city’s levee system broke apart and billions of gallons of water poured into the city. Two independent forensic engineering reports (here and here) found the levee failures were caused by a series of design and construction flaws, stretching back over decades, which were overseen, in all details, by the U.S. Army Corps of Engineers. The Corps has never refuted that basic point.
Congress ordered the Corps to develop plans for a more aggressive flood-control system for the Louisiana coast, insisting the Corps present “a final technical report for Category 5 protection.” (The surge associated with a Category 5 storm has about a 0.2% chance of occurring in any given year. A Katrina-level surge has about a 0.25% chance of occurring in any given year.)
According to the NRC:
Despite being given authority from the U.S. Congress for this project over three years ago, the [Army Corps’s] draft final technical report does not offer a comprehensive long-term plan for structural, nonstructural, and restoration measures across coastal Louisiana, nor does it suggest any initial, high-priority steps that might be implemented in the short term. Instead, a variety of different types of structural and nonstructural options are presented, with no priorities for implementation.
You can read more about these criticisms in Mark Schleifstein’s excellent piece in the New Orleans Times-Picayune.
Here, I want to focus on a legal point that is a lynchpin in the whole dispute. The problem with the Army Corps of Engineers' report is that it lays out a buffet of 27 alternative planning unit-level plans, but gives no indication of which ones should be pursued or what should be done next. As a result, the whole process could slip into a self-induced coma.
The Corps argues that it has no choice, that it lacks the authority to set priorities. But that’s wrong.
In its legislation, Congress directed the Corps to perform “a comprehensive hurricane protection analysis and design.” As part of that effort, Congress told the Corps to “develop and present a full range of flood control, coastal restoration, and hurricane protection flood control, coastal restoration, and hurricane protection measures.” The Corps says it has completed its task by providing a “full range of . . . measures.” What about setting priorities? What about an “analysis and design”? According to the Corps, that phrase is just a redundancy and has no independent meaning.
As a regulatory lawyer, I’m unconvinced. First, the phrase does have independent meaning. We know that because the “analysis and design” command was added to the law in 2006 by amendment after the statute was first passed in 2005. You don’t amend a statute to add a redundancy. Second, the word design, unlike the word measures, is in the singular. That means Congress expected the Corps to recommend a single course. If lawmakers wanted a choice of 27 designs they would have said so.
The language is clear. But even if it weren’t, the Corps is given wide berth to interpret ambiguous language so as to pursue its charge – which in this case is to protect the lives and property of southern Louisiana.
Now is not the time for the Army Corps to argue for its limitations. Instead it’s time for that agency to remember its motto, “Essayons” -- Let Us Try!
Robert Verchick, Gauthier-St. Martin Chair in Environmental Law, Loyola University, New Orleans. Bio.
| 1 Hi Rob,
Thoughtful analysis. It is critical to develop a long-term plan for the Gulf Coast, and it is essential to identify the locus of responsibility for same. Your assessment does this nicely.
Cheers,
Louise Comfort -- Louise Comfort |
| 2 Rob,
Powerful post! You did a terrific job of explaining that the Corps has the responsibility to make these policy choices.
Nancy -- Nancy Levit |
| 3 It is always so interesting to see the circumstances under which the Corps claims that it does or does not have discretion. This claim of lack of discretion seems particularly specious. -- rebecca bratspies |
| 4 Two problems, though. "Comprehensive hurricane protection" is ambiguous. Does it include Morganza to the Gulf? Wetlands and outer-barrier restoration? If the latter, restoration to what level and time-period? How about if the Corps set as a priority not redeveloping areas of New Orleans that used to be cypress swamp? All these issues, and more like them, involve political tradeoffs. Indeed the second big problem is the making of those tradeoffs. I'm not sure the Corps is the right organizational entity to make them. Once upon a time it, along with Congress, prioritized MRGO. That didn't work out well for anyone! -- Lee Clarke |
| 5 For those interested, as a result of the construction flaws Rob mentioned, a group of Plaintiffs recently withstood summary judgment in a suit attempting to hold the Corps liable for violating various legal mandates and making erroneous engineering judgments in the construction of New Orleans levees and canals. Judge Stanwood Duval, writing for the District Court of Eastern Louisiana, denied the governments motion to dismiss. Further the court held, that “triable issues existed regarding whether the Corps exercised due care in the maintenance and operation of MRGO.” MRGO for folks not familiar with New Orleans is the navigation canal that served as a mainline artery for storm surge water to rush into the city, banging up against levee walls. Further, the court concluded that there were material questions of fact concerning the original design and construction of the channel. In re Katrina Canal Breaches Consolidated Litigation, 2009 WL 799976 (E.D. La. 2009). -- Whit Remer |
| 6 Having recently attended the National Envionmental Justice Advsory Council (NEJC) conference in DC, I was disheartened in the lack of focus on relating climate change to the EJ communities. That is, communities who are, or will eventually be, directly affected by the Corps. lack of action. With that said, I think that the dialogue that needs to be started today is one in which we seriosuly consider the long term viability of the low lying coastal communities. This does not mean we need a full out retreat, but this needs to be discussed. Wtih reports stating that by 2100 much of the La. coastlne will be under water (http://www.guardian.co.uk/environment/2009/jun/29/rising-sea-level-new-orleans), it only seems reasonable to begin addressing what happens when there is no political will to get the right protection in place. As a previous commenter stated, Morganza to the Gulf is not that protection. And yes, I realize that New Orleans is not a coastal community, but with the continued erosion of the coast line and significant deterioration of the wetlands, it won't take a Katrina to hurt our area again. Green building is great, but an organized plan for HOW we build that includes a long term plan for WHERE we build is the only sustainable policy I can get behind. The various reports on coastal erosion and sea level rise could be wrong, but it is inevitable, and if history tells us anything, the IPCC repots generally are too conservative. I think it is time we place a fallback option on the table, one that allows us to consider a timely, and oderly retreat. It won't matter what the Corps does in the short term. Should they act? Yes. But maybe we should be developing a plan with them that looks further out than the next 50 years. -- Samuel Steinmetz |