11/30/2009 05:14 pm ET Updated May 25, 2011

What Will President Obama Do?

A federal judge ruled last week that the U.S. Army Corps of Engineers was guilty of "monumental negligence" in maintaining and operating a ship channel that caused the catastrophic flooding of a large swath of Greater New Orleans during Hurricane Katrina. While the judgment awarded five plaintiffs a total of $720,000, the decision benefits about 100,000 residents and businesses in the affected areas of the Lower Ninth Ward and St. Bernard Parish. Their damages alone run into the tens of billions of dollars.

For nearly four years, Judge Stanwood R. Duval, Jr. presided over the historic case of Robinson v. United States. The plaintiffs alleged that the Mississippi River-Gulf Outlet (known as the "MR-GO") - constructed by the Corps in the 1960s as a 76-mile navigation shortcut from the Port of New Orleans through pristine wetlands to the Gulf of Mexico--was a "hurricane highway." The plaintiffs presented evidence at trial that showed the Corps knew the MR-GO could dramatically worsen hurricane storm surge and destroy the federal levees in metropolitan New Orleans.

In the wake of the worst man-made disaster in American history, more than 1,300 people died and at least 500,000 residents were displaced. Hundreds of billions of dollars of property was destroyed in a 100 square mile area.

In his ruling excoriating the Corps for its "insouciance, myopia and shortsightedness" in mismanaging the MR-GO and rejecting two different immunities asserted by the Bush Administration, Judge Duval found that the Corps was legally responsible for the catastrophic flooding. "The Corps' lassitude and failure to fulfill its duties resulted in a catastrophic loss of human life and property in unprecedented proportions," Judge Duval said in his 156-page opinion.

So what happens now?

President Obama must soon make a crucial decision that will test his oft-repeated commitment that his administration "will keep the broken promises made by President Bush to rebuild New Orleans and the Gulf Coast." During his campaign, the President sharply criticized the glacial pace of the federal assistance to Katrina victims, promising "to partner with the people of the Gulf Coast to build now, stronger than ever," to restore the hurricane storm buffering coastal wetlands, and to rebuild essential infrastructure, hospitals, and schools.

During the next two months, President Obama must decide whether his Justice Department will appeal Judge Duval's ruling and prolong the Katrina victims' litigation for many more years. Hours after the court's decision, a defiant Army Corps announced that it would litigate the case all the way to the Supreme Court. Fortunately, the President is also Commander-in-Chief, and he alone will decide what happens.

Katrina victims have a modest proposal for their Government: restore the wetlands, rebuild the infrastructure, and fairly compensate the victims. At the same time, Congress must also reform the Corps of Engineers which has become an oxymoron--there are few competent engineers left and project planning and construction is largely outsourced. Specifically, the lawmakers must mandate expert civilian review of all water development projects and repeal the archaic flood control immunity that Justice John Paul Stevens has described as "nothing more than an engine of injustice."

The President would be well served if he followed his predecessors in dealing compassionately with the victims of mass disasters. In three instances between 1976 and 2000 where the federal government was culpable for causing property damages and death due to negligence (Teton Dam flood disaster, Swine Flu immunization injuries, and Cerro Grande fire), Presidents Ford and Clinton chose not to assert the same federal immunities invoked in our Katrina litigation. Instead, realizing that slow motion justice is no justice, they procured legislation establishing no-fault victims' compensation funds that swiftly awarded equitable reparations and avoided years of protracted litigation.

Immediately after Judge Duval's ruling, Senator John McCain stated that the finding of "gross negligence" was "further proof that the Army Corps is in urgent need of reform. . . . American taxpayers cannot wait for another natural disaster like Katrina before we act to improve the safety and security of Corps projects."

If the November election had gone the other way, President McCain would have been making the fateful decision whether to negotiate a global settlement with all Katrina victims. I have a pretty good hunch that President McCain would have done the right thing.

Now, let's see what President Obama will do.

Pierce O'Donnell
is a Los Angeles trial lawyer who served as lead counsel in Robinson v. United States. The decision can be found at