Katrina Trial: New Orleans’ Truth Commission

Patrik Jonsson, Christian Science Monitor, April 22, 2009

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{snip} [S]ix plaintiffs are suing the US Army Corps of Engineers over the creation and maintenance of the Mississippi River Gulf Outlet (“Mr. GO”), a shipping channel that they say introduced fatal risk to a fragile levee-protection system. The government argues that the magnitude of the storm, by itself, caused the flooding of New Orleans, the deaths of more than 700 city residents, and $90 billion of damage across the region.

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A win by the plaintiffs–six hurricane survivors, including a local TV news anchor and his wife–in this “first real Katrina trial” could pave the way for a class-action lawsuit against the Corps, as well as set the tone for future US coastal policy.

But for many New Orleanians–especially those in the hard-hit St. Bernard Parish, New Orleans East, and the Lower Ninth Ward–the Mr. GO trial represents their own form of truth commission: It’s a chance not just to lay blame, but also to bridge what has been called a “deep gorge of distrust” between residents and the US agency charged with protecting them from the sea.

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A Category 3 hurricane, Katrina tore through New Orleans on a Monday morning. On Tuesday, as the sun shone and residents began to relax, water came pouring through the streets as high waters broke and overtopped levees.

In the Lower Ninth Ward, Jimmy Braxton’s sister climbed with her two small kids into the attic. Holding the kids, she craned for air as the water rose. Another relative swam to the house and busted through the roof. She had to let go of one of the kids to reach through the hole. Only one child survived.

Today, Mr. Braxton lives with that image–and his sister’s choice–every day. The fact that a favorable verdict in the Mr. GO case could mean a future class-action lawsuit–possibly with cash damages for residents–doesn’t assuage him.

“How can you pay us for my family’s loss or put a price on these scars?” said Braxton, a graying, lanky black man standing on a deserted street in the Lower Ninth Ward on Tuesday. “No dollar amount in the world can heal the pain and suffering” of watching the storm’s devastation.

At the same time, he adds, “If the Corps didn’t do its job, somebody should be held responsible. Somebody’s got to answer to something.”

At stake in the trial is between $10 billion and $100 billion in possible damages, on top of the $107 billion that US taxpayers have already poured into the rebuilding of New Orleans and the devastated Mississippi Gulf Coast.

The federal Flood Control Act gives the Corps broad immunity and discretion, acknowledging the unforeseen risks that are implicit when people carve into the natural environment. But by allowing the case to go to court, the judge in the Mr. GO case rejected the Corps’ assertions of “sovereign immunity” from lawsuits involving floods.

“If successful, this case will set the tone for the future and enable people in St. Bernard Parish, New Orleans East, and the Lower Ninth Ward to seek redress for damages for what happened to them,” says Elisa Gilbert, one of the attorneys for the plaintiffs.

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Nationally, the Mr. GO case could inspire a bevy of lawsuits against the government and the Corps, also forcing Congress to get involved, says Erich Rapp, a Baton Rouge-based lawyer who blogs on coastal issues. A middle position would be for Congress to ask the US Court of Federal Claims “to look at the federal government’s culpability” in preventing disasters like Katrina, Mr. Rapp says.

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