The US government could be facing a bill running to hundreds of billions of dollars after a federal judge ruled that failures by the US Army Corps of Engineers were responsible for the worst flooding that followed Hurricane Katrina.
The Corps – which is responsible for the design and upkeep of the levees surrounding New Orleans – had argued that Katrina was a once in a 100-year storm, an act of God, that had overwhelmed its hi-tech flood protection system. However, Judge Stanwood Duval Jr brought the debate back down to earth, blaming authorities for "negligence" in a strongly worded ruling that accused the Corps of "insouciance, myopia and short-sightedness".
The circuit court judge's groundbreaking decision ruled that flood defences had been compromised by a navigation channel built, but not properly maintained, by the Corps that funnelled floodwaters from Katrina into New Orleans with devastating consequences.
The 76-mile long Mississippi River-Gulf Outlet, known locally as Mr Go, appears to have fatally damaged the Corps' own legal defence that had rested on legislation from 1928, which protected the government from law suits arising from failures in flood controls.
Judge Stanwood rejected defence efforts to use the Flood Control Act, accepting expert testimony that the Corps' failure to maintain Mr Go – built to connect the Gulf of Mexico to the port of New Orleans – had enabled it to act as a "hurricane highway" bringing the storm surge into the city and causing the levees to fail.
"The failure of the Corps to recognise the destruction that the MRGO had caused and the potential hazard that it created is clearly negligent on the part of the Corps," the judge stated his 156-page verdict. "Furthermore, the Corps not only knew, but admitted by 1988, that the MRGO threatened human life ... and yet it did not act in time to prevent the catastrophic disaster that ensued with the onslaught of Hurricane Katrina."
While the initial ruling could cost the Federal government as little as $700,000, it opens the way for thousands of other claims to join together into class action suits whose costs could exceed $100bn (£60bn).
"The implications are billions of dollars of liability for the government," said Pierce O'Donnell, who together with the large team of lawyers in this case is expected to travel to Washington next week to push for a broader settlement for Katrina victims.
Close to half a million claims have been filed against the Corps in the wake of the 2005 hurricane, but Wednesday night's ruling only deals with two areas – St Bernard Parish and the lower 9th Ward – which were directly effected by the Mr Go channel. There are as many as 100,000 potential plaintiffs in these two areas alone and a US army fiscal report estimated potential liability at $500bn.
The court ruling was also vindication for expert witness Dr Ivor van Heerden who strongly countered the "Act of God" defence and whose testimony was key to revealing the role played by Mr Go. "Katrina wasn't a once in 100-year storm, or even a once in 40-year storm and it wasn't even a direct hit," he told The Independent during a recent tour of the Lower Ninth Ward. "This was not about an act of God it was about incompetent engineering," the hurricane expert said.
Dr Van Heerden is a leading proponent of building a system that will protect Louisiana from a Category 5 hurricane. He told last month's environment symposium organised in New Orleans by the NGO Religion Science and the Environment that this could be done by restoring wetlands, building better levees, and installing huge flood gates on Lake Pontchartrain, similar to the ones used by Holland to protect itself from the North Sea.
In the meantime, many Katrina survivors will now be following the example of 75-year-old Lucille Franz who was one of three successful plaintiffs. She and her husband Anthony were awarded $100,000 plus costs for the loss of their home in the Lower Ninth Ward where they had lived for half a century without experiencing flooding prior to Katrina. Speaking before the ruling she said: "We had 18 to 22ft of water, and it went about 3 or 4ft upstairs, and something hit the side of the building. It looked like a tornado come through."
Like so many New Orleans residents she had believed in the expensive and much-vaunted flood protections, so had no flood insurance.
The scientist who refused to give up
To critics in the United States Army Corps of Engineers he is a crackpot, alarmist and troublemaker who used the devastation of Hurricane Katrina to make a name for himself. But to most of the people in New Orleans, Ivor van Heerden is simply "the man who knew".
Formerly the deputy director of the Louisiana State University (LSU) Hurricane Centre, the South African-born scientist has been the loudest voice for the last decade warning that serious flaws in the flood protection system around the Big Easy needed fixing. In the immediate aftermath of the 2005 storm, he provided support for the search and rescue efforts and plugging of the levee breaches.
"Mr Hurricane", as he became known, wouldn't stand for the Corps investigating its own mistakes. He put together a group of engineers and scientists from the university and the private sector and got Louisiana state to give them official status. They set about figuring out what had caused the levees to fail and found compelling evidence of the Corps' incompetence, mistakes by contractors and cover-ups which he detailed in his book The Storm.
At first the LSU, concerned about federal funding, asked him to stop speaking to the media. Then this year they fired him, giving no reason.