The Hurricane Katrina Levee Breach Litigation: Getting the First Geoengineering Liability Case Right

Abstract

In August 2005, Hurricane Katrina flattened the Gulf Coast from the Alabama border to 100 miles west of New Orleans. The New Orleans levees failed, and much of the city was flooded. More than 1800 people died, and property damage is estimated at $108 billion. While Katrina was not the most deadly or expensive hurricane in U.S. history, it was the worst storm in more than eighty years and destroyed public complacency about the government’s ability to respond to disasters.

This Essay argues that conceptualizing the destruction of New Orleans as a negligent or intentional failure of the Corps is mistaken and will continue the cycle of catastrophic flooding in New Orleans. The implications of this mistake, however, reach far beyond New Orleans. Levees are the original geoengineering projects — large-scale manipulations of Earth’s environment intended to mitigate the consequences of climate. Thus, the Katrina levee breach litigation is the first in an upcoming wave of climate geoengineering litigation. The stakes are high — if the Katrina plaintiffs prevail, then the litigation will drive geoengineering solutions for all coastal cities.

This article analyzes the court's use of the first Federal Tort Claims Act (FTCA) class action lawsuit, and why this lawsuit should have been dismissed under Flood Control Act of 1928 (FCA) immunity. It also introduces the key coastal science and geology literature dealing with the risks to the Louisiana Coast.

Keywords: Hurricane Katrina, geoengineering, class action, torts, New Orleans, FTCA, FCA, flood control act, federal tort claims act, ocean rise, climate change, levees, subsidence, storm surge, disaster, Corps of Engineers, hurricane