In one of the most intriguing court decisions in years, the federal district judge who has presided over most of the cases involving responsibility for the damages caused by Hurricane Katrina, Stanwood Duvall, ruled that the Army Corps of Engineers was grossly negligent in shoddy oversight of the Mississippi River-Gulf Outlet, and that this negligence led to the flooding of the Lower Ninth Ward of New Orleans and the neighboring St. Bernard Parish. Judge Duvall also ruled that because the Corps ignored clear evidence of the problems in doing its environmental assessments of the project, it was legally liable for the damages.
Judge Duvall's ruling is important for a number of reasons. First, it confirmed what has been repeatedly documented -- that the failure to keep the Outlet properly narrowed allowed much bigger waves to build up than its levees were designed for, and that this led to their breaching. Since the relationship between "fetch" or breadth and wave height is -- well it's so basic it's not even civil engineering 101 -- it's hard to argue this doesn't constitute gross negligence, but the Corps in the trial argued that this really didn't matter, because the storm was so big that even a properly maintained system would have flooded.
Second, the judge rejected the Corps's argument -- which had always worked before -- that its failures are the result of "discretionary policy" decisions and hence immune from judicial review. There is some chance -- perhaps a substantial chance -- that the 5th Circuit Court of Appeals, which tends to defer to the Corps, will overrule Duvall on appeal. It's still a strong signal to the Corps that it has been found accountable. And finally, and perhaps most intriguingly, Judge Duvall may have breathed new strength and life into the National Environmental Policy Act.
NEPA was originally designed -- although this is largely forgotten -- to improve the quality of federal decision-making by mandating that agencys take the unintended environmental consequences of their actions into account. Over the years it has, unfortunately, been turned into more of a procedural hurdle that simply requires that agencys write down the possible implications of their decisions -- not that they necessarily do anything about them.
But Duvall specifically found that the Corps's liability lay in the substantive, not merely the procedural, vision that underlay NEPA. "It is beyond arbitrary and capricious -- it flies in the face of the purpose of NEPA [the National Environmental Policy Act] and ignores the very heart of what 'operation' means," Duval wrote of the way in which the Corps ignored what its internal reports told it about the threats from the poor maintenance of the channel.
Combining Duval's decision with another, a few weeks earlier, in which the 5th Circuit itself ruled that oil, coal, and chemical companies could be sued by citizens of the Gulf Coast who suffered losses from Katrina on the grounds that their carbon emissions had caused the waters of the Gulf of Mexico to warm and increased the ferocity of the storm. In its ruling the 5th Circuit clearly laid out the argument for holding carbon emitters liable for climate damages:
Plaintiffs' .... assert that defendants intentionally and unreasonably used their property so as to produce massive amounts of greenhouse gasses and thereby injure both plaintiffs and the general public by contributing to global warming, which caused the sea level rise and added to the ferocity of Hurricane Katrina, the combined effects of which resulted in the destruction of plaintiffs' private property, as well as their loss of use of certain public property in the vicinity of their dwellings. Plaintiffs' trespass claim asserts that defendants' greenhouse gas emissions caused saltwater, debris, sediment, hazardous substances, and other materials to enter their property.
The Court also specifically linked the ability of the plaintiffs to use the common law of nuisance to sue oil companies to the findings by the Supreme Court in its ruling that carbon dioxide was subject to regulation under the Clean Air Act (the Supreme Court found that carbon dioxide causes climate change, and that even if carbon dioxide from the entire world causes climate change, so does carbon dioxide from specific sources).
And finally the 5th Circuit rejected the oil industry's defense that the issue of global warming can be dealt with only by Congress (the same argument that was made by the American Petroleum Institute last week in the EPA hearing where I testified) last week. In fact, the court said that while Congress could pass climate legislation that would preempt common law lawsuits, it had not done so. (And the oil industry of course does not want Congress to act.)
What is emerging -- most prominently on the Gulf Coast but also in recent decisions in the 2nd Circuit -- are a remarkable set of legal tools for citizens damaged by environmental mismanagement. The courts are ruling that, because of NEPA, the federal government -- in this case the Corps of Engineers -- must not only formally record but also act upon evidence that it is creating new environmental risks. While private corporations -- the oil industry -- do not have the same affirmative duty, the courts are finding that under the common law they do face legal liability for damages that result from their greenhouse-gas emissions. And the only way polluters can shield themselves legally from this common law liability is to persuade Congress to enact a comprehensive regulatory scheme to protect the public -- in which cases aggrieved citizens will have the right to sue the government if it fails in its duty to protect under such schemes.
If these broad protections apply to global warming in which a given company is by percentage a small part of the problem, they are likely to be far more effective in the more typical environmental situation in which a few major polluters are the culprits.
This is still a fledgling set of legal doctrines -- and higher courts may well modify or trim them. But if these rulings develop and are expanded upon, environmental law might move beyond its recent focus on the purely procedural and evolve into a more robust substantive shield for average citizens whose lives are damaged by the environmental mismanagement of corporations and government.