From [HERE] The US Court of Appeals for the Fifth Circuit [official website] ruled [text, PDF] Monday that the US Army Corps of Engineers is not liable for damages caused by canal breaches that occurred during Hurricane Katrina [JURIST news archive]. Monday's ruling overturns a previous decision [text, PDF; JURIST report] issued by the same three-judge panel in March. Plaintiffs claimed that the impact-review requirement of the National Environmental Policy Act (NEPA) constituted a legal mandate that overrides the Corps' discretion. The court overruled its previous decision on this matter, citing to "discretionary-function exception" (DFE) of the Federal Tort Claims Act . The court, however, wrote:

NEPA's procedural mandates require agencies to inform their discretion in decisionmaking. An agency that complies with NEPA gives outside influences (the public, lawmakers, other agencies) more information with which to put pressure on that agency, but the original agency retains substantive decisionmaking power regardless. At most, the Corps has abused its discretion—an abuse explicitly immunized by the DFE.

In a 2009 decision [JURIST report] the US District Court for the Eastern District of Louisiana [official website] ruled that USACE made "negligent decisions" that "rested on applications of objective scientific principles and were not susceptible to policy consideration." The Fifth Circuit's most recent ruling, voids the district court's ruling, which allowed the plaintiffs to recover approximately $720,000.

Since Katrina USACE has received about 500,000 other similar administrative claims and has attempted to dismiss this case on several occasions. In March 2009 federal judge Stanwood Duval Jr. found [JURIST report] that material questions of fact existed as to a potential violation of USACE's mandate that, if proven, would preclude it from protection under the Federal Tort Claims Act. In May 2009 Duval ruled [JURIST report] that the Mississippi River-Gulf Outlet (MRGO) is a shipping channel rather than a flood control outlet, which would have given USACE immunity in tort actions. In a similar instance in February 2007, Duval denied USACE's motion to dismiss, which argued that the MRGO was part of a larger flood control system in New Orleans rather than strictly a shipping channel. Three months before Hurricane Katrina struck New Orleans, an expert at the LSU Hurricane Center [official website] predicted that the MRGO could amplify storm surges by 20-40 percent. After Katrina, the center determined through computer modeling that the presence of the MRGO also increased the speed of the surge, causing an even greater detrimental effect [WP report].