Subscribe to RSSDid we learn from MRGO…or are we signing up for new corps-designed disasters?
Editor’s note: By now most readers are aware that on November 18 Federal District Judge Stanwood Duval released a long-awaited ruling on a precedent-setting lawsuit against the Corps of Engineers. He found in favor of the plaintiffs, Katrina flood victims who had sued for damages caused by the catastrophic failure of levees along the west bank of the Mississippi River Gulf Outlet (MRGO). Judge Duval’s decision has been dominating state news and cccupying considerable national press.
Most of the press accounts focus on the details of the decision, the likelihood of appeals and the implications of this foot in the legal door that will probably spawn additional lawsuits from many NOLA flood victims. I’m particularly interested in something else – how this decision will affect the long-term, prearranged and dysfunctional marriage between the corps and the state. For example, what lessons from this judgment (if any) will be applied to the multibillion dollar coastal protection and restoration program, on which the very future of south Louisiana depends?
A swarm of corps engineers buzzes quizzically over the "Mashrique" funnel that was created by the junction between two corps-designed and maintained navigation channels - the MRGO and the GIWW
Judge Duval’s ruling came as no surprise to insiders who testified for the plaintiffs. It is said that the corps had presented a woefully inadequate defense against what the judge termed “nonfeasance” in the maintenance of this destructive and little-used channel, dredged directly through protective coastal forests during the 1960s.
Here are links to some of the media coverage of the legal decision. The first stories that I saw were by Mark Schleifstein in the November 19 Times-Picayune and Cain Burdeau for A/P. The November 20 Times-Picayune carries a strong editorial on the decision. Debbie Elliott and Kathy Lohr from National Public Radio (NPR) discussed the ruling on the Morning Edition on November 19. Robert Siegel, also with NPR, interviewed Times-Picayune reporter Mark Schleifstein on the November 19 afternoon show All Things Considered. The last media piece that I saw was a Rachel Maddow interview on the MRGO decision with Time Magazine writer (and long term corps critic) Mike Grunwald on Maddow’s show on MSNBC.
The ruling is now under review by the Corps. It will presumably be appealed and could wind up years from now in the Supreme Court.
On November 18, the very day that Judge Duval announced his decision, I attended a public meeting in Thibodaux on the proposed Donaldsonville to the Gulf levee project (DTTG),* intended to reduce flood risk for up to 250,000 coastal residents within the Barataria Basin. The meeting was hosted by Steve Mathies, director of the Louisiana Office of Coastal Protection and Restoration (OCPR) and it featured a very impressive panel of technical experts recruited** to make recommendations to OCPR on the project.
The DTTG panel listened carefully to corps spokesmen, who described current agency assessments of the pros and cons of four alternative alignments for hurricane levees that would either span or surround the Barataria Basin between Bayou LaFourche and the Mississippi River (see graphic).
Each alignment carries its own set of critical uncertainties: resistance to storm surge; number of people and property area “protected;” net ecosystem damage; and cost to build and maintain in the face of a subsiding coast and rising sea level.
As I listened to the presentations I wondered how a similar meeting held in the nineteen fifties prior to the construction of the ultimately disastrous MRGO might have been conducted – and how it would have been received by the public.
During a social gathering after the meeting in Thibodaux, Judge Duval’s just-announced decision on MRGO was a hot topic.
One member of the DTTG project review panel is Leonard Shabman, a distinguished resource economist retired from three decades on the Virginia Tech faculty, who currently works for Resources for the Future. 
Over a couple glasses of wine, Dr. Shabman and I discussed the history of MRGO and the potential future of DTTG.
Unlike those who see the judge’s ruling as a reason to celebrate, Dr. Shabman expressed concern about the money and time that will be spent in legal wrangling. He envisions the possibility that a substantial monetary award for compensating victims rather than fixing levees could backfire. His exact quote was:
…blowback from the rest of the nation if billions of Fed $ go to the region for this ruling might be — “build your own levees.”
Shabman referred me to a report that he co-authored with Douglas Woolley in June 2007 (under contract to USACE headquarters) that related to Katrina flooding, the role of MRGO and the Barrier Plan, a 1967 public works water project proposed by the corps during the 1960s-80s to reduce the hurricane flood risk of NOLA.*** The Woolley-Shabman report was written up in the NY Times in 2007.
The corps of engineers maintains a strong historical preference for extensive levees over ecosystem restoration. Despite statements to the contrary, state policy seems to have swung in that direction.
Unlike the state, the corps is bound by environmental constraints that were not in place when MRGO was constructed – and that were only beginning to take effect when the Barrier Plan was proposed. Federal laws now require mitigating prospective environmental damage and considering public input before glibly building modern MRGOs. The Louisiana governor’s office recently expressed concerns about such constraints.
The addition of coastal protection to coastal restoration has exploded the pre-Katrina cost from $15 billion to $100 billion. The $85 billion difference is the direct cost of levees, not hidden costs, such as residents behind new levees feeling an unjustified sense of safety.
The fatally-flawed MRGO project was originally sold to Louisiana politicos with grossly optimistic economic projections. Now a new generation of politicos and their constituents are hearing equally hyperbolic projections of flood protection. I’m not sure we’ve learned very much.
Len Bahr (len.bahr@gmail.com)
Postscript: I call your attention to a review by Sandy Rosenthal (levees.org) of Catastrophe in the Making: The Engineering of Katrina and the Disasters of Tomorrow. by William R. Freudenburg, Robert Gramling, Shirley Laska and Kai Erikson. Professor Laska is a member of the DTTG review panel.
*If constructed, DTTG would be the eastern extension of the Morganza to the Gulf (MTTG) project, also highly contentious and much further along in its implementation.
**By Denise Reed at UNO, who facilitated the meeting.
***A proposal to install operable flood gates at three openings to Lake Pontchartrain: the Rigolets, Chef Menteur Pass and Seabrook. The barrier plan, which was never-built because of threatened lawsuits, was analogous to DTTG but different from MRGO in that it required en environmental assessment of potential damages (National Environmental Policy Act, or NEPA review).
14 Comments
2009-12-16
15:39:32
[...] Len Bahr discussed the other hurricane protection levee, the Donaldsonville to the Gulf for the Barataria basin in light of Judge Duval’s ruling on [...]
2009-12-01
20:35:30
Oli:
How do you post this and manage to live in New Orleans? Is it not treason?
2009-11-30
15:27:47
Having been involved, with St Bernard Parish and others, in efforts to close the MRGO since l985, let me add this observation. We couldn't shut it down because our congressional delegation would not allow that to happen. Even when the project's environmental damage came in and the economics went South, way South, as predicted, the delegation would not allow it. Even after Katrina they would not support closing MRGO until the exposure became extreme.
All of this said, the Corps is deeply culpable for that misbegotten project and for the rest of the failed levess. So are however the MRGO's navigation boosters, the real estate developers who saw another industrial corridor in the making, and our representatives going back to Hale Boggs and Bennett Johnston. They are also responsible for decisions to spread the Corps budget over dozens of less worthy projects to keep all the constitutencies happy; New Orleans took left-overs. Even now, the delegation is promoting, over Corps resistance, MRGO-like projects in Calcacieu, Terrebonne and New Iberia. Post Katrina.
The moral of this story, to me, is that real Corps reform is going to have to take politics out of the what and where decisions (the how decisions are different, and can be quality-controlled) that now dominate. That state decisions will be less so seems to me highly questionable. The best check I know is clear legal requirements and the ability of citizens to go to court to enforce them. Had we had them at the time of MRGO we could have saved money, landscape and lives.
2009-11-23
15:45:33
Dear Rocky Raccoon,
Judge Stanwood Duval noticed when he was forced to absolve the USACE from liability for the failure of its 17th Street and London Avenue floodwalls, that the taxpayer's money was just as squandered, property just as damaged and people were just as dead.
The only difference between the death and mayhem for the folks in the main basin of the city is an 81-year old law that holds the Corps harmless from professional and financial liability should its flood protection work fail.
Judge Duval has noticed this craziness. My point to you Rocky, is that this not about other navigation structures which may not be covered under the Flood Control Act of 1928.
This is about change in the way water projects are carried out in this whole country. Democratic Senator Russ Feingold and Republican Senator John McCain issued a joint statement calling for sweeping reforms for the Corps in the wake of the ruling.
http://www.aboutlawsuits.com/hurricane-katrina-lawsuit-results-in-damages-army-corps-7047/
2009-11-23
22:09:48
Thanks Sandy. I think it is odd that we didn't know in advance of the storm just what projects would be immunized. Similarly, how did we not foresee that chaos would ensue when insurance companies could decide what damage was by flood and what by wind damage? It seems weird to me that millions of people live under protection of levees, none of which we can be very certain are protected by the Federal Tort Claims Act. Property owners should have certainty whether their neighborhood and homes are protected.
That being said, I'm glad there could be reforms. But I became a pessimist in August 2005, and I'm doubtful that an institution such as the Corps would readily embrace reform. Maybe the experts can comment on this, but it seems like the water resources bills from washington are still big pork projects that lead to a thousand little pet projects without a cohesive strategy. Hurricane Betsy and Hurricane Katrina didn't cause measurable corrections in Corps/Congress behavior, and I doubt Judge Duval can either. (Sorry to bring the pessimism!)
2009-11-25
07:40:08
LaCoastPost is currently undergoing an update and we apologize for a temporary discontinuity in our look. Meanwhile, apropos this post on the MRGO decision, the November 25 Times-Picayune carries a thoughtful but provocative op-ed column by two out-of-state critics of those who hold the corps of engineers solely responsible for the Katrina disaster. Whether or not you agree with the thoughts of these writers, they may reflect the thinking of many non-residents.
2009-11-23
11:07:49
One aspect of the MRGO and Chalmette Loop segment of the federal hurricane protection system is that the latter would not be necessary if not for the former. That is, if MRGO had not been dredged, it is unlikely that a hurricane protection levee for that area would have been needed. To build the Loop, the Corps took the spoil bank of a navigation channel and modified it so that it became a flood protection levee. This meant that the local governments “protected” by the levee were required to pay their share of the cost of the project (indeed, they were forced to pay protection money). Later, when state or local officials would request that the Corps perform a specific remedial action related to MRGO, the Corps would use the “Old Switcheroo” tactic. That is, the Corps would respectfully decline to it because such an action was not authorized for a navigation project, or, if that excuse was not tenable for the occasion, because it was not authorized for a flood protection project. The Corps has maintained that MRGO and the Loop are different projects, but the effects of the projects are linked and synergistic. Thus, it is ironic indeed that the distinctions made by the Corps for all these years came back to haunt them.
2009-11-22
21:19:58
MRGO stood apart from the other Nola levees in that it was not afforded the protection of the Flood Control Act. As a navigational canal, it was not absolved of responsibility for the consequences of poor construction and maintenance.
So, my first question is about the impact of this on other coastal areas, and particularly in Louisiana. Are there many other non-"flood control projects" throughout the country that are similarly situated? That is, are all those levees up in Sacramento "flood control projects" or, perhaps, a canal of some sort? If MRGO is a rarity among the myriad of levees around the country (see Sandy's post above), then maybe the impact will be small.
Also, to what degree can the Corps in the future simply tack on the additional purpose of "flood control" in order to seek prospective protection of the project under the flood control act? That is, the next MRGO will be packaged with an additional purpose in order to purchase Flood Control Act immunity.
Just curious how the experts would consider these two thoughts...
2009-11-23
08:54:54
FYI Rocky Raccoon and other commenters-
Kathy Lohr from National Public Radio kindly forwarded this link to her story about the MRGO judgment that ran on the November 19 Morning Edition. She quotes Paul Kemp among others in this story.
2009-11-22
18:06:04
Len, all good points. One more - the coast continues to disappear largely because of unintentional human impacts (levees and canals/channels that changed the hydrology of our coast). Unless we recreate a self sustaining coast, all the levees we've constructed (and even if all proposed levees were built) are just buying a little more time.
Keep doing good.
Carlton
2009-11-22
17:16:36
Clearly, this judgement is not about just the folks in New Orleans or even Louisiana. It's about everyone. Fifty five percent of the American population lives in counties protected by levees and our Army Corps designs and builds the most important ones. This ruling makes it clear that changes must be made in the way Congress chooses, authorizes and implements water projects in all of America, not just New Orleans. These changes must be made before another judgement is made against the federal government. And the changes must be made before more people die.
Click here for data from FEMA that shows that 54.83% of the American population (at least) lives in counties protected by levees.
http://levees.org/2/wp-content/uploads/2009/10/LeveeStatisticalSummary.pdf
2009-11-22
14:16:44
What NO ONE is "talking about" is the fact that Duval's decision in the MRGO case was CORRUPTLY motivated. This result has been predicted from the day Duval "inherited" the KATRINA litigation, after Porteous was disqualified because of his "troubles" with the Federal Government. As Duval has done (or tried to do) so many times in the KATRINA litigation, this decision by Duval directly benefits the Judge's "close personal friend of long-standing, Calvin Fayard, and Fayard's clients. In case anyone "missed" it, Fayard is the plaintiffs' lawyer in the MRGO case. The U.S. Department of Justice and the FBI should be taking a hard look at Duval, at Fayard, at all lawyers situated similarly to Fayard, and at the entire "Victims of KATRINA" legal umbrella.
2009-11-22
11:54:12
It seems difficult for some to appreciate that what is good, indeed indispensable, for New Orleans is lethal for the coast. With the lion's share of "restoration" monies going towards massive, linear coastal levees, the last thing we need is more fast track and less environmental review. At some point, the science on this needs to be heard, and understood.
2009-11-22
09:12:11
I predict that rather than being told to "build our own levees" I believe that, in Louisiana, a governance structure will get created that blends federal, state and local interests into the picture akin to how the Dutch do their flood protection and land restoration/cultivation. We can use the Netherlands approach as a model.
Keep in mind New Orleans will also have a new mayor.