Editorial: MR-GO Suit Against Corps Opens Can Of Worms

There is a good reason why we should never allow the camel to get its nose in the tent. The judge who says that New Orleans victims of Hurricane Katrina can sue the U.S. Army Corps of Engineers over claims that its poor design of the Mississippi River-Gulf Outlet caused catastrophic flooding is opening a can of worms.

Are we suggesting that the MR-GO was not poorly designed? No. In fact, we don’t know. The issue is not the design. There may be legitimate doubt as to whether any design could have prevented flooding as a result of Katrina’s visit. We know the storm was not as large as first thought and eventually was downgraded to a Category 3. Could the track of the storm as it hit landfall have something to do with it? Even that is not the issue.

The Corps has a history dating back more than 200 years. (Congress also dates back a long way.) Levy and dike work in New Orleans has gone on for about 300 years. How many different Corps people have been involved during the years that the MR-GO has been in existence? The issue is not just the MR-GO. It is every existing Corps project that may have dissatisfied someone—every project that has not lived up to Corps and proponent predictions. Allowing lawsuits against the Corps because of Katrina flooding will open the door to legal actions involving every other dike and floodwall project in the New Orleans area, despite the fact that improvements or proposed improvements were often thwarted by myriad politicians and environmental lawsuits.

Could we not challenge every project that failed to please someone on the basis of poor engineering standards or policy? Lawyers think so, and they are licking their lips over this one.

Does the decision by U.S. District Judge Stanwood Duval set a precedent that opens the door to hundreds of additional lawsuits against the Corps? Even lawsuits against the Corps in general are not the issue. The Corps has been subjected to lawsuits at every turn. In fact, a large chunk of the Corps’ annual budget is used to pay defense lawyers. Yet, even that is not the issue.

The question also has little bearing on whether the Corps is responsible. Victims of flooding during the Katrina catastrophe certainly did suffer, and many still are suffering. But for the judge to decide it is OK to sue the Corps over the MR-GO is a mistake. The Corps doesn’t have enough money as it is. The answer is for government overseers to hold hearings on the issue, and do it quickly. Since the Corps apparently agrees that it may be best now to plug the channel (for economic reasons), it should be done efficiently and as quickly as possible. But don’t do it in the courts. If the congressional panel decides victims should be compensated, then compensate them. Not letting them sue does not mean we should abandon fairness.

We live in a litigious nation. Every time we turn around someone is suing someone—frequently over frivolous issues that judges should, but often don’t, throw out. Once we sue the Corps over what plaintiffs believe to be a poor design, are we going to get permission to sue Congress for every poor decision it has made? (Right now we have a majority of Democrats in Congress. Most disagree with everything the Republicans do.)

Giving flood victims the right to sue the Corps will open a Pandora’s box. If the judge’s decision is upheld, the camel’s nose will be in the tent. Lawsuits will abound.

While lawsuits are sometimes the answer when victims have been aggrieved, we must draw the line somewhere. Our opinion is not a matter of the WJ defending the Corps, which we have done frequently; it is a matter of keeping a lid on a pervasive practice that drains budgets and stalls progress. We would find ourselves spinning wheels rather than moving ahead. Still, better planning should be in vogue.

If government agencies at any level make bad decisions, and if we are unable to prevent them up front, then those who govern should have the backbone to oust those responsible. If they will not, we as voters have a responsibility to visit the polls and oust the public servants who will not serve responsibly. That’s the way our system is supposed to work.

The Mississippi River-Gulf Outlet has been around for a long time. Almost from the beginning, the Corps was the target of criticism and doubt about the need for the waterway and the nature of its planning. There was also a great deal of support. Once in place, entrepreneurs took advantage of the available low-cost water transportation and numerous businesses sprang up along its banks. For them and their customers, the MR-GO was a boon. Certainly the development helped the economy. For opponents it apparently was not. Many charge it has been a disaster for the environment, and they may be right. Our knowledge of the environment has expanded over the years.

The decision to close the waterway (or not) will depend upon an evaluation of the information stakeholders expose to judgment. The ire built up over the years should not be allowed to cloud our vision. If circumstances today call for closure, then close it. To evaluate the history of MR-GO benefits and its downside is fair game. Pent-up anger should have no role.

Sue the Corps over poor planning! What next, Congress? Proponents are already trying to set the stage to sue a parent who dares apply the flat of the hand to the seat of his/her unruly child. Smoking in cars with children? A bad idea, to be sure, but to arrest and punish and perhaps even sue? We are lawsuit crazy! We see almost as many ads for legal beagles on television as we do cartoons.

Now law enforcement is something else. We fail at that quite often. But mistakes and poor planning should not be grist for lawsuits against government agencies. Lawsuits and fines for such reasons could put us all in jail. Mistakes and poor planning are not desirable, but even the perpetrators believe they are right, particularly if they were honest mistakes.

Perhaps a higher court will recognize the foolishness of permitting lawsuits against the Corps over the MR-GO. No one in his right mind allows the camel to thrust its nose into the tent.

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