Court Faults Army Corps In Katrina Levee Breaches

hurricane katrina floodingLate last Wednesday, there was a blockbuster court ruling that got lost in the healthcare and oversight hearing onslaught. However, the decision by Eastern District of Louisiana Judge Stanwood R. Duval Jr. in the In Re: Katrina Canal Breaches Consolidated Litigation case is a game changer with immense and far reaching ramifications.

Duval excoriated the Army Corps of Engineers and held them, and the government, directly liable for much of the flooding that devastated New Orleans’ Lower 9th Ward and St. Bernard Parish in the Hurricane Katrina disaster of 2005.

The full opinion is here. It is long, 156 pages, detailed, and absolutely fascinating reading. Seriously.

The potential ramifications are huge and, if the decision holds up in the certain appeal, affect large swaths of policy from basic concepts of Federal governmental liability, the structure and performance of government contracting and the entire future of national flood control policy.

Duval finds:

The Corps’ lassitude and failure to fulfill its duties resulted in a catastrophic loss of human life and property in unprecedented proportions….

Clearly, in this instance, the Corps shortchanged the inhabitants of New Orleans and the environs by its myopic approach to the maintenance and operation of the [Mississippi River Gulf Outlet] ….. It simply chose to ignore the effects of the channel.

It is the Court’s opinion that the negligence of the Corps, in this instance by failing to maintain the MRGO properly, was not policy, but insouciance, myopia and shortsightedness. For over forty years, the Corps was aware that the Reach II levee protecting Chalmette and the Lower Ninth Ward was going to be compromised by the continued deterioration of the MRGO, as has been exhaustively discussed in this opinion. The Corps had an opportunity to take a myriad of actions to alleviate this deterioration or rehabilitate this deterioration and failed to do so. Clearly the expression “talk is cheap” applies here.

The government had asserted immunity under the Flood Control Act of 1928 which, along with other laws, generally protects the Army Corps of Engineers from liability for defective flood-control project and provides the government can’t be sued for acting with reasonable care or making a judgment call based on policy. Duval, however held the pertinent shipping channel to be a navigation canal, not a flood-control project under the Flood Control Act of 1928 and that the Corps breached the duty of due care in their construction, maintenance and oversight of the navigation canal.

Duval’s current ruling only covers six named plaintiffs, but is thought to potentially open the door to over 100,000 plaintiffs’ actions on behalf of private property owners and businesses pending in the areas described in the ruling. So now the obvious question is whether Judge Duval’s monumental decision will withstand appeal.

The New York Times, citing Tulane University law professor Oliver Houck, an expert in environmental and natural resource law, indicated:

The United States Court of Appeals for the Fifth Circuit in New Orleans, where the case would go, has a record of hostility to plaintiffs in environmental cases, said Oliver Houck, a law professor at Tulane University. But, he said, Judge Duval’s decision is so technical and packed with details — it came with a 33-page appendix of graphs, charts and maps — that there are only a few areas where it would be exposed to a reversal.

“For an appellate court to reverse him on the facts is unthinkable,” Professor Houck said.

Well that still leaves the law of course, in this case Duval’s interpretation and application of the Flood Control Act of 1928 and the other immunity sources claimed by the government, but there is no question that Duval has intentionally and meticulously crafted a piece of art designed to anticipate and withstand scrutiny. Here is the Appendix of charts, graphs, maps and specs that Houck described; specially downloaded from PACER for the discerning readers of Emptywheel.

The government has been placed in a game changing box. Duval’s opinion is a work of art and, despite being lost in the hubbub of the healthcare shuffle and cable shouting orgies over Sarah Palin, is of seminal importance. Enjoy.

The Fraud Of GOP Tax And School Choice Policy Shown In Arizona

Last May, I had the privilege of getting to know the Sidney Hillman Foundation when I was in New York with Marcy Wheeler to see her receive the Hillman Prize. One of the announcements at the May ceremony was an expansion of Hillman Foundation activities to include, in addition to the yearly Grand Prizes, a monthly award, known as "The Sidney," for outstanding progressive journalism and an ongoing blog, Full Court Press, featuring press writers and critics Charles Kaiser and Sydney Schanberg.

Here I want to draw attention to the August winner of Hillman’s "The Sidney", an investigative series by Ryan Gabrielson and Michelle Reese in the East Valley Tribune Newspaper, from metropolitan Phoenix, about taxpayer subsidized school tuition credit abuse in Arizona. One of the constant refrains emanating from the conservative right is "school choice" and, of course, their standard refrain on tax policy. Both areas are flimsy fronts for class warfare and further unjust enrichment of the already privileged. Gabrielson and Reese have exposed a dirty example of this particular area of the GOP mantra.

In the mid to late 1990s, a group of dogmatic conservative Republican leaders, led by Arizona Congressman Trent Franks and a leading GOP school reform and voucher advocate, Lisa Graham Keegan, saw an opportunity to implement some of the pet school reform projects of national conservative Republican think tanks in the Arizona school system as test cases. The results were as predictable as they are bleak:

The state’s Private School Tuition Tax Credits program covers the cost of private education, often for children whose parents could afford to pay it themselves – while allowing affluent families to reduce the amount of income tax they pay into the state’s general fund.

To date, Arizona’s main bank account has lost $350 million to private schools. The price tag is growing as the state grapples with the most serious financial crisis in its history, and people who depend on the general fund – public school children, the disabled, the poor and the sick – face severe cuts in services.

Under the program, taxpayers give money to nonprofit charities called school tuition organizations, or STOs for short. STOs give scholarships to children for private school tuition, and the state provides donors a dollar-for-dollar tax credit in exchange for their contribution.

The tax credit law, signed by Gov. Fife Symington in 1997, is touted as a tool to make private education more accessible to families who could not otherwise afford Read more

T. Boone or not T. Boone



We have had quite the go lately here at the FDL Borg Hive over the automaker bailout and, more specifically, the most pressing of which is GM. For the moment though, I want to touch on a corollary to the future of the American auto industry, and that is the transition to clean and green that needs to occur for long term sustainability of Deetroit wheels.

If we could flip the switch on a perpetual motion device, heck even the Chevy Volt, tomorrow, that would be wonderful. But we cannot. The path back to health and profit prosperity for American auto will be a process that takes time, and it is going to take intermediate steps while the new technology comes on line, gets refined and evolves into maturity.

The guy, for better or worse, that has been out front making noise about the transition from oil to clean and green is none other than the infamous, and legendary, Texas oil man T. Boone Pickens. Transition is the key word regarding the Pickens Plan as it relates to our topic de jour, automobiles. Because the Volt is not scheduled for release until 2010, and even assuming GM and its Volt makes it that far (which is no given), it will take a while for plug in technology to become deeply rooted. And, of course, a massive shift all at once to electric autos would crash our strapped and deteriorating power grid.

Pickens’ main point on internal combustion transition is that natural gas should be a, it not the, transition fuel for cars, and, more significantly, fleet vehicles.

Pickens’ Plan proposes that the natural gas that is currently used to fuel power plants could be used instead as a fuel for thousands of vehicles. Ken Medlock says that the US will continue to use natural gas for electric power generation. Natural gas burns cleaner than coal, making it an increasingly popular fuel for power plants. Gas plants also produce fewer greenhouse gas emissions.

The technology needed for Compressed Natural Gas (CNG) vehicles such as City buses, fork lifts and passenger cars with CNG drivetrains is available now. Honda sells the Civic GX, with a 170-mile range. In addition, it is possible to convert vehicles to run on CNG in addition to leaving the conventional fuel injection intact, allowing the driver to switch back and forth at will. Kits are available for the do-it-yourselfer. Read more

The Rule Of Law: Excising The Local NeoCon Rot

The FDL family has had a profound positive impact on the federal scene on issues surrounding the rule of law. We are all hurt when justice is politicized. As I pointed out in Deceit In The Desert, the problem with politicization at the state and local level in many places is every bit as bad, and the effects every bit as ruinous.

In Maricopa County Arizona a battle to turn the tide and restore the fair and equal rule of law is in full tilt in the last two weeks leading up to the election. In the video, governor Janet Napolitano, former Arizona Attorney General and United States Attorney for Arizona, describes the critical significance of the office of county attorney, and how Tim Nelson will repair it. Let me tell you about the guy that broke it and who must be ejected from office.

Andrew Thomas has been the theocratic right wing tool in office as the Maricopa County Attorney since 2004. Attorney Gerald Richard, who represented the Phoenix Police Department and law enforcement interests for over 19 years, had this to say about Thomas:

As County Attorney, he has diverted resources away from prosecuting violent criminals to persecuting immigrants charged with “smuggling themselves.” His wiretapping of the Serial Shooter suspects without a court order could jeopardize the expected convictions in the case. Thomas has cut training for his staff attorneys by 90-percent, creating Read more

From Pollan to the President

I’ve been arguing for a while that Michigan–the state with the second greatest agricultural diversity after California–ought to use innovations in sustainable agriculture as part of its plan to drive economic recovery.  Agriculture is going to have to be more sustainably produced in the future, and MI is uniquely suited to lead in developing the policies and technology to accomplish this goal.

But then, we should be talking about how to pursue this sustainable future more widely.

Which is what Michael Pollan does in this long letter to the next President, recommending a number of changes to our food policies. Here are Pollan’s comments on the ties between our food and the petroleum that goes into it. 

After cars, the food system uses more fossil fuel than any other sector of the economy — 19 percent. And while the experts disagree about the exact amount, the way we feed ourselves contributes more greenhouse gases to the atmosphere than anything else we do — as much as 37 percent, according to one study. Whenever farmers clear land for crops and till the soil, large quantities of carbon are released into the air. But the 20th-century industrialization of agriculture has increased the amount of greenhouse gases emitted by the food system by an order of magnitude; chemical fertilizers (made from natural gas), pesticides (made from petroleum), farm machinery, modern food processing and packaging and transportation have together transformed a system that in 1940 produced 2.3 calories of food energy for every calorie of fossil-fuel energy it used into one that now takes 10 calories of fossil-fuel energy to produce a single calorie of modern supermarket food. Put another way, when we eat from the industrial-food system, we are eating oil and spewing greenhouse gases. This state of affairs appears all the more absurd when you recall that every calorie we eat is ultimately the product of photosynthesis — a process based on making food energy from sunshine.


The F.D.A. should require that every packaged-food product include a second calorie count, indicating how many calories of fossil fuel went into its production. Oil is one of the most important ingredients in our food, and people ought to know just how much of it they’re eating.


Read more

The Pentagon’s Media Analyst Domestic Psy-Ops Program: Is It Legal?

By now you have probably heard that the New York Times has an in-depth piece by David Barstow out for Sunday’s edition on the use by the Pentagon of media "military experts" as propaganda conduits.

It would be nice to be able to say that the revelations in Barstow’s article are shocking, but they are not. Spin and propaganda have, from the outset, been more important to the Bush Administration than efficient and effective performance and truth. This already looks to be a big deal around the blogosphere, everybody will be discussing the general parameters of the story. Dave Neiwert serves up a dissection at FDL (and do click through his links here and here to his earlier pieces at Orcinus in 2004 on Bush Administration psy-op propaganda, they are excellent).

Beyond the face value of the NYT article, however, lurk some more interesting issues. Marcy has, as usual, immediately found one in relation to the spotty history of the NYT on Bushco propaganda, most notably in regard to Judith Miller and the case for the Iraq War (can you say "Sweet Judy Blew Lies"? I can). Here is mine; we know this Pentagon propaganda scheme is crass and loathsome, but is it legal?

Arguably, the answer is no, it is not legal; of course, as we have seen time and again, that is never an impediment to the Bush Administration. And, as with so many other Bushco ills, we have a template for analysis because they have made a pattern and practice of crossing the line of propriety in Read more

Help this NOLA Family

Scout prime hasn’t forgotten NOLA, even if George Bush has. Today, she’s encouraging people to donate to a fund helping out a NOLA family that has lost its house twice–once in Katrina, and once through a terrible accident.

Two weeks ago I postedabout the Joseph family who lost their Lower 9th Ward home for thesecond time. Kellie Joseph and her 6 children lost their home toKatrina. The rebuilding of their home was nearly complete when it wastragically destroyed by a fire after someone abandoned a stolen car intheir backyard and lit it aflame to destroy evidence. The flamesengulfed the home.

A group of Tulane medical students who heard of thisdevastating news decided to help the family rebuild again and started awebsite called Hope in Grace for what is called Project: Bring Miracle.Recently the students contacted me. The online donation effort hasreached a standstill after some initial local media attention. It istheir hope to reach a wider audience through the Internet. 

Hereis where we can help. We as individuals and bloggers can not rebuildthe great city of New Orleans but perhaps we can help to rebuild thehome of one family that has now fallen through the cracks. The familyhad invested their Read more

Not Quite the Energy Task Force

I get the feeling today’s installment of Cheney started out as a story about the Energy Task Force. It also tells the story of the Klamath fish kill and snowmobiles in Yellowstone. The big news, though, is Christine Todd Whitman’s side of several issues, where Cheney blindly put business issues ahead of environmental requirements. In some ways, last week’s Rolling Stone article on Cheney’s involvement in climate change–which relies heavily on FOIAed documents–provides a valuable complement to the WaPo story, so I’m going to read them in conjunction. Doing so, I believe, closes the circle, shows how Cheney’s unwavering ties to the energy industry drive the rest of his actions.

The WaPo describes the Energy Task Force as an unquestioning affirmation of business assertions that environmental regulations hamper business and energy development.

Sitting through Cheney’s task force meetings, Whitman had beenstunned by what she viewed as an unquestioned belief that EPA’sregulations were primarily to blame for keeping companies from buildingnew power plants. "I was upset, mad, offended that there seemed to beso much head-nodding around the table," she said.

Whitman said she had to fight "tooth and nail" to prevent Cheney’stask force from handing over the job of reforming the New Source Reviewto the Energy Department, a battle she said she won only afterappealing to White House Chief of Staff Andrew H. Card Jr.This was an environmental issue with major implications for air qualityand health, she believed, and it shouldn’t be driven by a task forceprimarily concerned with increasing production.

Directly out of that effort, Rolling Stone suggests, arose the propaganda campaign that served to undercut EPA itself.

Lamont's "Single Issue" Voters

The Q-Poll shows that 44% of Lamont’s supporters support him mainly because of Lieberman’s stance on the Iraq war. And Markos anticipates a bunch of pundits frowning on the large number of "Single Issue" voters.

For a pundit to suggest the Iraq war is a "Single Issue" simply betrays their ignorance of the impact that war has and will continue to have on this country and the rest of the world.

Some are opposed to the war because they’re opposed to 2,500 Americans dead, 18,000 Americans wounded, perhaps 100,000 Iraqis dead, untold wounded. Some oppose the war simply because it uses violence to solve problems that should be solved using other means.

Some are opposed to the war because it has ruined our military. Two-thirds of our active army and three-quarters of our National Guard face readiness problems because it needs to replace equipment used in Iraq. Extended deployments and lowered recruiting standards are having bad effects on the military, their families, and our mission. The Iraq war–sold as a way to make our country safer–has only exposed it defensively.

Some are opposed to the war because it has thoroughly destabilized Iraq, and threatens to destabilize the entire region. By almost every standard, Iraqi quality of life is worse today than it was under Saddam.

Some are opposed to the war because it has created precisely the problem that it was cynically sold as a way to prevent. Iraq is creating terrorists, at a time when the threat of terrorism remains very real.

Some are opposed to the war because it has turned us into an international pariah. Some countries no longer trust us. Others want nothing to do with our aggressive ways.

Bolten's 5-Point Plan, 75 Days Later

It’s a testament to how messy my desk is that I just came across Mike Allen’s article, from a week after Josh Bolten ascended to the Chief of Staff role, describing Bolten’s plan to right the sinking ship of the Bush Administration. But the benefit of rediscovering it now is that what once appeared as an earnest plan now reads like humor.

Buggy732600bmpSo how has Bolten’s five-point plan fared?

1 DEPLOY GUNS AND BADGES. This is an unabashed play to members of theconservative base who are worried about illegal immigration. Under thebanner of homeland security, the White House plans to seek more fundingfor an extremely visible enforcement crackdown at the Mexican border,including a beefed-up force of agents patrolling on all-terrainvehicles (ATVs).

A great idea, Bolten, if only the National Guard weren’t already so taxed as a result of long deployments in Iraq. As of last week, Bush was far short of his goal to have 2500 Guardsmen and women deployed by now (though Fox News says they’re not). It seems a bunch of Governors saw the devastation of Katrina last year, and want to make sure their Guard is available for any summertime disasters in their own states.