Killer Drones Coming To America!

Like all new fads that start overseas and eventually make their way here to the US as the next “new thing”, drones are on their way to our friendly skies. From AP via Google News:

Unmanned aircraft have proved their usefulness and reliability in the war zones of Afghanistan and Iraq. Now the pressure’s on to allow them in the skies over the United States.

The Federal Aviation Administration has been asked to issue flying rights for a range of pilotless planes to carry out civilian and law-enforcement functions but has been hesitant to act. Officials are worried that they might plow into airliners, cargo planes and corporate jets that zoom around at high altitudes, or helicopters and hot air balloons that fly as low as a few hundred feet off the ground.

On top of that, these pilotless aircraft come in a variety of sizes. Some are as big as a small airliner, others the size of a backpack. The tiniest are small enough to fly through a house window.

Exciting! Cops want to use them to catch speeders, monitor traffic and track suspects (that is pretty much all of us). Border Patrol and Sheriff Joe Arpaio want to use them to chase down the brown (skinned that is). Fed Ex wants them so they don’t have to actually pay pilots. And the NSA wants them to spy on “suspicious” people (like the writers on this blog). Hey, it’s all good; what’s the loss of a little privacy when it comes to protecting America?

There is a tremendous pressure and need to fly unmanned aircraft in (civilian) airspace,” Hank Krakowski, FAA’s head of air traffic operations, told European aviation officials recently. “We are having constant conversations and discussions, particularly with the Department of Defense and the Department of Homeland Security, to figure out how we can do this safely with all these different sizes of vehicles.

Excellent! Because I will feel a lot better when the DOD and DHS have the “civilian airspace” saturated with their freaking drones; won’t you? Of course you will. And we are on the way there too. From Government Executive:

The Homeland Security Department expanded the use of unmanned drones along the U.S.-Mexico border this week, flying for the first time this sort of advanced technology in west Texas.

The Predator B unmanned aerial vehicle is providing support to U.S. Customs and Border Protection to help interdict drug smugglers and detect people trying to enter the United States illegally, key lawmakers said.

Texas lawmakers have been clamoring for years to have an unmanned drone assist in border security operations, but the move had been delayed by bureaucratic wrangling between DHS and the Federal Aviation Administration. Drone flights along the Southwest border had been limited to regions in Arizona and New Mexico.
……
By putting eyes in the sky along the Rio Grande, we will gather real-time intelligence on the ground to augment the good work of federal, state and local law enforcement….

Well, so drones are here among us, at least those of us near the Mexican border; and they are here to stay. Government drones are going to be ever more pervasive and ubiquitous throughout the entirety of the country if the law and order types in the federal, state and local governments have anything to say about it. And they will have their say; count on it. Swell, eh?

So, with all of the Afghani, Pakistani and Iraqi wedding parties that have been taken out by US Predator drone strikes, how long before they hit one of our precious wedding celebrations right here in the homeland of the good old “real America”? What will the NeoCon wingnuts say when it hits their own chosen ones?

[Incredibly awesome graphic by the one and only Darkblack. If you are not familiar with his work, or have not seen it lately, please go peruse the masterpieces at his homebase. Seriously good artwork and incredible music there.]

BP’s LMRP: Claws, Craws, Saws and Jaws

As you undoubtedly know by now, BP has failed miserably at every “fix” they have attempted so far. There is growing evidence of what a total sham exists in the craven use by BP of any number of subsidiaries to insulate itself from criminal and civil liability.

But right now the focus is on the ongoing LMRP attempt that BP now is warning could drag on from four days to a week. Many of you have been keeping up the monitoring of this back on the previous Top Hat and Tails: BP Has Yet Another “Solution” thread from Sunday. Please continue that discussion and reporting here.

One other thing I would like to point out; despite making a big dog and pony show of its commitment to speak with a single voice, Thad Allen, and quit making a media show of parading a series of Cabinet Officers down to the Gulf in a vain attempt to look like they are on top of things, the Obama Administration is …. wait for it …. making a media show of sending Attorney General Eric Holder down to the Gulf to make it look like they are on top of things. From Reuters:

Attorney General Eric Holder will survey the damage from the Gulf Coast oil spill on Tuesday and meet with federal prosecutors and state attorneys general, the Justice Department said on Monday.
…..
After a tour and briefing by the U.S. Coast Guard, Holder will meet with the state attorneys general from Louisiana, Alabama and Mississippi as well as U.S. attorneys from those states. Holder is also scheduled to speak to reporters in New Orleans.

The Justice Department has already demanded that the companies involved in the spill, including BP Plc, Transocean Ltd and Halliburton Co to preserve paperwork related to the accident that could become part of an investigation.

Experts have said the Justice Department was likely eyeing potential violations of the Clean Water Act, the Endangered Species Act, the Migratory Bird Treaty Act and the Refuse Act.

Notice what is missing from that last paragraph? There is no mention of prosecution under the negligent and/or reckless provisions of the Federal manslaughter law for the eleven deaths occurring on Deepwater Horizon as a result of BP’s willful and wanton conduct. The article mentions the deaths, but the Obama Administration and Holder DOJ never does. When it comes to talk of potential accountability, it is like the eleven deaths never happened to the Obama Administration. But hey, there are business interests and military fuel contracts they must protect and, clearly, that takes precedence for this Administration.

[Graphic – BP: Broken Promises. Logo design by Foye 2010 submitted as part of the Art For Change BP Logo Redesign Contest and used with permission]

Top Hat and Tails; BP Has Yet Another “Solution”

Now that this is an all oil all the time blog, the restless residents are clamoring for a new thread for the LMRP, the latest greatest bullshit moonshot BP is ginning up for the gullible media and public. You ask, we comply; this is a full service blog!

Here is a quick recap. Top Kill failed. Junk Shot failed. Top Kill and Junk Shot combined failed. The only thing BP has been successful at is failure, but they are very good at failure. There is a very good chance the key to all this failure is contained in this quote buried in the lower half of an article by oil and gas industry publication Upstream Online:

Flow from the Macondo well is not travelling up the main well bore, BP operations boss Doug Suttles said Tuesday, a revelation that supports theories that a cement failure played a part in the blowout.

“We actually believe the flow path is between two strings of the casing and not up the main wellbore,” Suttles said.

Suttles said BP could not be certain of the flow path but diagnostic tests on the well seem to indicate the flow is not coming up main bore.

A veteran industry source told UpstreamOnline that the news about the flow path “almost certainly confirms” what many suspected, that problems with the annular cement around the production casing played a part in the blowout.

The well itself has no structural integrity; it has not from the outset. The well was doomed to blow out and all these hair brained fixes BP has hucked to the clueless media and public were doomed to fail as well. This has been an insane ostrich head in the sand process, apparently all to salve a pissed public and angry mother nature because BP and the government have got nothing else and they know it.

The latest greatest pie in the sky dream fix is LMRP, which technically stands for Lower Marine Riser Package. It is the new and improved Top Hat! Here is a diagram of the LMRP plan.

Here is my question: How the heck is this going to work if the well itself – the casing, seals, cement and well walls – is not intact, which we know it is not as to all of said factors? LMRP may further choke or restrict the flow, but it strikes me it cannot, and will not, stop it; and the resulting back pressure could exacerbate other inherent problems. We have been led to believe all the oil being lost is through the BOP, and such is the only video evidence we have been provided by the unified disaster response command. However, there is no evidentiary proof such is the case, and we have been intentionally prohibited from seeing the full scope of what is going on down there at the Macondo well bore.

Secondly, the existence of decent flow through the wounded BOP has kept well pressure from building up and really blowing out the well bore. When you cap such a compromised well bore with either the LMRP or the “new BOP”, even assuming they can really pull either of those off as BP claims (and the fuckers have not been right about any of their half assed ideas yet), then you will block the pressure vent that has kept the well bore itself from further eroding and being further seriously compromised.

As even Obama Administration flak Carol Browner now admits, the only real hope for stopping the oil flow of the biggest environmental disaster in history comes from the relief wells being drilled. But they can not be completed until sometime in August at best (hey, did you know hurricane season is on its way?), and BP has ceased work on one of the two relief wells because they may want to pirate the BOP from that effort to further jerry rig the Macondo well head by putting it on top of the current broken BOP. The sheer willful and wanton incompetence from both BP and the government continues unabated. Also, from the same link:

Congressman Ed Markey, who forced BP to make available a live video feed of the oil leak, said Sunday he had “no confidence whatsoever in BP.”

“BP has been making it up as they go along the whole way,” he said on “Face the Nation.” I don’t think that people should really believe what BP are saying.”

No shit Sherlock. LMRP, the latest version of “Top Hat”, is just another song and dance. And people laughed at Dr. Sludgelove’s bomb.

UPDATE: Henry Waxman, Bart Stupak and the Energy and Commerce Committee have made a notable document dump:

Committee Releases Memo & Documents Concerning Issues Raised in Recent News Media Accounts Related to the Deepwater Horizon Gulf of Mexico Oil Spill

Sunday, 30 May 2010 15:06

Today, the Committee on Energy & Commerce released a memo and documents concerning issues raised in recent news media accounts related to the Deepwater Horizon Gulf of Mexico Oil Spill.

Yesterday, The New York Times published an article entitled “Documents Show Earlier Fears About Safety of Offshore Well.” The article described documents from BP that, according to The New York Times, “show serious problems and safety concerns with the Deepwater Horizon rig.”

Some members have asked whether we were the source of the documents cited by The New York Times and whether they can review the documents. We were not the source of the documents, but we have been able to identify most of the documents mentioned in the article. We are providing them to the members as attachments to this memorandum.

Some of these are technical documents about well design. Others are documents that raise questions, but their connection to the blowout, if any, require additional investigation. The Committee staff is continuing its investigation of these issues.

Documents:

Memo from Chairmen Henry A. Waxman and Bart Stupak

Evaluation of Casing Design Basis for Macondo Prospect, May 14, 2009

GoM Exploration Wells, Appendix F, Jan 2010

BP Email, March 12, 2010

BP Emails, March 10, 2010

BP Emails, February 8, 2010

BP Emails, November 17, 2009

Top Kill Discussion Thread

Okay, for any Firedogs and Wheelheads following the big Top Kill moonshot (link is to a great Oil Drum explanation) going on, this is an open discussion thread. If you need a link, CNN has a live feed linked on their front page, here is the NPR feed. If folks have better ones, put them in comments.

The US Coast Guard has given final approval for the Top Kill attempt, so away we go I guess.

Here is a synopsis from Amina Khan at the LATimes:

To make up the pressure difference, technicians plan to pump mud into the blowout preventer, a kind of surge protector that sits on top of the wellhead. The device had failed to cut off the flow of oil when the pressure surged too high.

The mud that will be used, drilling mud, is a dense mixture of water and minerals such as bentonite clay. It can be made even denser by adding heavier minerals such as barite and galena.

The heavier the mud, the more it will suppress the flow — but on the flip side, the harder it will be to pump in.

The mud will be pumped from surface vessels with a combined 50,000-horsepower pumping capacity into the internal cavity of the blowout preventer. BP officials said they planned to pump the mud at a rate of up to 40 barrels per minute.

It’s unclear how much mud will be needed to stop the flow of oil, BP spokesman Bryan Ferguson said. It’s possible, he said, that the entire cavity of the blowout preventer will have to be filled.

Once the oil flow has been contained, the hole will be covered with cement to permanently close the well.

If it looks like the procedure isn’t working, perhaps because too much mud is leaking from the top of the blowout preventer, technicians plan to implement the junk shot — shooting in material to keep the mud from escaping.

The clog would include odd objects such as rope knots, golf balls and shredded tires. These materials are picked for a reason — each odd shape serves a different function, and the more varied the shapes of the collected junk, the more effective the clog will be.

BP officials said they could shoot a clog into the system several times, if necessary.

Okay, to start the ball rolling, here is my first question: The newer CGI depictions of the process give me more hope than the early ones in that it now appears the material is moving through a simpler path in and through the BOP than it first appeared. That is good. But my question is what is the status of these high pressure lines they have attached to pump the mud in through? As I read last night in a couple of different places, they had to actually cut off the old hose and fittings on the two key entry points, the kill line and the choke line, and then “clean up” which I take to essentially be grinding/filing to de-burr whatever flange is remaining and then clamp new feed lines for the mud on. Is that right? And, if so, are clamp fittings going to hold such high pressure? I have a pressure washer that only goes up to 3000 psi, and there is no way in hell you could use a clamp fitting on it; has to be threaded. So, is this gonna work on the BOP?

Here is the official BP Top Kill animation video.

Here is the official BP graphic description of the Top Kill process:

[Lead graphic – BP: Broken Promises. Logo design by Foye 2010 submitted as part of the Art For Change BP Logo Redesign Contest and used with permission]

George Will Goes Bipolar Over Brown

What can brown do for you? If you are George Will, apparently only mow the yard or fill the water glass at the local stick in your butt snob steakhouse. In the latest condescending pile of rancid, rambling garbage by Will, set for tomorrow’s Washington Post, Will defecates on about everybody he can find over the immigration law fiasco in Arizona:

“Misguided and irresponsible” is how Arizona’s new law pertaining to illegal immigration is characterized by House Speaker Nancy Pelosi. She represents San Francisco, which calls itself a “sanctuary city,” an exercise in exhibitionism that means it will be essentially uncooperative regarding enforcement of immigration laws. Yet as many states go to court to challenge the constitutionality of the federal mandate to buy health insurance, scandalized liberals invoke 19th-century specters of “nullification” and “interposition,” anarchy and disunion. Strange.

Uh, hey George, in the first place Pelosi is right, and your discreetly veiled misogynistic demeaning of her, and offensive put down of her hometown of San Francisco, are intellectually impertinent and scurrilous. The rest of the paragraph is such a non-sequitur you have to wonder about the stability of the mind authoring it.

Arizona’s law makes what is already a federal offense — being in the country illegally — a state offense. Some critics seem not to understand Arizona’s right to assert concurrent jurisdiction. The Mexican American Legal Defense and Education Fund attacks Gov. Jan Brewer’s character and motives, saying she “caved to the radical fringe.” This poses a semantic puzzle: Can the large majority of Arizonans who support the law be a “fringe” of their state?

“Some critics”, namely George Fucking Will (that is what the “F” stands for, right?) do not seem to understand the concept of Federal preemption. Maybe Will is one of those conservative headcases who consider the Tenth Amendment the most supreme law of the land; but it is not, and there is a reason serious minds term such morons “Tenthers” in the same vein as the nutjob Birthers. Clearly George Will would not know a proper legal argument of “concurrent jurisdiction” if it hit him in the ass. The rest of that paragraph is gibberish unworthy of a grade school response.

Popularity makes no law invulnerable to invalidation. Americans accept judicial supervision of their democracy — judicial review of popular but possibly unconstitutional statutes — because they know that if the Constitution is truly to constitute the nation, it must trump some majority preferences. The Constitution, the Supreme Court has said, puts certain things “beyond the reach of majorities.”

What? This paragraph makes Charles Cheswick and Billy Bibbit in One Flew Over The Cuckoo’s Nest look sane. You have got to be kidding me. The link is to the Cliff’s Notes, because it appears George Will Is not familiar with the great American novel.

But Arizona’s statute is not presumptively unconstitutional merely because it says that police officers are required to try to make “a reasonable attempt” to determine the status of a person “where reasonable suspicion exists” that the person is here illegally. The fact that the meaning of “reasonable” will not be obvious in many contexts does not make the law obviously Read more

More Obama Administration Civil Liberties Neglect

In New York, the cops are getting frisky with minorities (suspect classes under the equal protection clause):

From 2004 through 2009, in a policy that has gotten completely out of control, New York City police officers stopped people on the street and checked them out nearly three million times, frisking and otherwise humiliating many of them.

Upward of 90 percent of the people stopped are completely innocent of any wrongdoing. And yet the New York Police Department is compounding this intolerable indignity by compiling an enormous and permanent computerized database of these encounters between innocent New Yorkers and the police.

Not only are most of the people innocent, but a vast majority are either black or Hispanic. There is no defense for this policy. It’s a gruesome, racist practice that should offend all New Yorkers, and it should cease.

Police Department statistics show that 2,798,461 stops were made in that six-year period. In 2,467,150 of those instances, the people stopped had done nothing wrong. That’s 88.2 percent of all stops over six years. Black people were stopped during that period a staggering 1,444,559 times. Hispanics accounted for 843,817 of the stops and whites 287,218.
….
“They have been collecting the names and all sorts of other information about everybody who is stopped and frisked on the streets,” said Donna Lieberman, the executive director of the New York Civil Liberties Union, which is fighting the department’s stop-and-frisk policy and its compiling of data on people who are innocent. “This is a massive database of innocent, overwhelmingly black and Latino people,” she said.

Bob Herbert is right, it is “a gruesome, racist practice”. Thank god we have a Constitutional law scholar President, expert in civil rights and dedicated to protecting the liberties afforded by them. This is a perfect situation for the President’s Privacy and Civil Liberties Oversight Board!

Oh, wait……..

When President Bush two years ago failed to name members to a federal board to monitor the protection of civil liberties, Democrats and activist groups were duly outraged, seeing it as one more example of his administration’s indifference to the subject.

But more than a year into a new presidency, the Privacy and Civil Liberties Oversight Board—created by Congress in 2007—remains as much a cipher under Barack Obama as it was under George W. Bush. The White House has yet to Read more

Big Brother Kidnapping Your Babies' DNA?

Because I was diagnosed with breast cancer at a really young age, doctors routinely ask if I want to undergo genetic testing. I’ve always responded that I’d be happy to give researchers DNA material, and even to arrange for other family members who might be of interest to donate their DNA, too (there’s a small chance there’s a fairly funky genetic issue in question). But they always push, instead, to have me to do the paid genetic testing counseling following by the even more highly paid genetic testing targeted for the patented BCRA genes (for which I’m a less likely candidate). The explanation is at least partly the hospital wants me to undergo the counseling so I can give informed consent to what genetic testing might mean.

Apparently, newborn babies in a number of states are having the opposite problem: doctors submitting their DNA for research without either notice or consent.

Newborn babies in the United States are routinely screened for a panel of genetic diseases. Since the testing is mandated by the government, it’s often done without the parents’ consent, according to Brad Therrell, director of the National Newborn Screening & Genetics Resource Center.In many states, such as Florida, where Isabel was born, babies’ DNA is stored indefinitely, according to the resource center.

[snip]

Genetic testing for newborns started in the 1960s with testing for diseases and conditions that, if undetected, could kill a child or cause severe problems, such as mental retardation. Since then, the screening has helped save countless newborns.

Over the years, many other tests were added to the list. Now, states mandate that newborns be tested for anywhere between 28 and 54 different conditions, and the DNA samples are stored in state labs for anywhere from three months to indefinitely, depending on the state. (To find out how long your baby’s DNA is stored, see this state-by-state list.)

Brad Therrell, who runs the federally funded genetic resource consortium, says parents don’t need to worry about the privacy of their babies’ DNA.

“The states have in place very rigid controls on those specimens,” Therrell says.

Now, there may be really good public health reasons for this. But considering increasing efforts to collect DNA databases for criminal reasons, not to mention the efforts to profit off of this, it seems like hospitals ought to be far more transparent about this process.

The New Robber Barons

image002Previously, Marcy Wheeler noted the unsavory blending of the private interests of health insurance companies with the power and hand of the US government:

It’s one thing to require a citizen to pay taxes–to pay into the commons. It’s another thing to require taxpayers to pay a private corporation, and to have up to 25% of that go to paying for luxuries like private jets and gyms for the company CEOs.

It’s the same kind of deal peasants made under feudalism: some proportion of their labor in exchange for protection (in this case, from bankruptcy from health problems, though the bill doesn’t actually require the private corporations to deliver that much protection).In this case, the federal government becomes an appendage to do collections for the corporations.

The reason this matters, though, is the power it gives the health care corporations. We can’t ditch Halliburton or Blackwater because they have become the sole primary contractor providing precisely the services they do. And so, like it or not, we’re dependent on them. And if we were to try to exercise oversight over them, we’d ultimately face the reality that we have no leverage over them, so we’d have to accept whatever they chose to provide. This bill gives the health care industry the leverage we’ve already given Halliburton and Blackwater.

Marcy termed this being “On The Road To Neo-feudalism” and then followed up with a subsequent post noting how much the concept was applicable to so much of the American life and economy, especially through the security/military/industial complex so intertwined with the US government.

Marcy Wheeler is not the only one recently noting the striking rise in power of corporate interests via the forceful hand of US governmental decree (usually at the direct behest of the corporate interests). Glenn Greenwald, expanding on previous work by Ed Kilgore, penned a dynamic description of the dirty little secret (only it is not little by any means) afoot in modern American socio-political existence:

But the most significant underlying division identified by Kilgore is the divergent views over the rapidly growing corporatism that defines our political system.

Kilgore doesn’t call it “corporatism” — the virtually complete dominance of government by large corporations, even a merger between the two — but that’s what he’s talking about. He puts it in slightly more palatable terms:

To put it simply, and perhaps over-simply, on a variety of fronts (most notably financial restructuring and health care reform, but arguably on climate change as well), the Obama administration has chosen the strategy of deploying regulated and subsidized private sector entities to achieve progressive policy results. This approach was a hallmark of the so-called Clintonian, “New Democrat” movement, and the broader international movement sometimes referred to as “the Third Way,” which often defended the use of private means for public ends.

As I’ve written for quite some time, I’ve honestly never understood how anyone could think that Obama was going to bring about some sort of “new” political approach or governing method when, as Kilgore notes, what he practices — politically and substantively — is the Third Way, DLC, triangulating corporatism of the Clinton era, just re-packaged with some sleeker and more Read more

The DOMA Decisions In The 9th Circuit

I have had several people ask me off blog about the “opinions” on the Defense Of Marriage Act (DOMA) that have surfaced recently in the 9th Circuit. I may write more later; but for now I want to lay out the sequence of facts and actions and start the discussion.

The current issue really took flight last month when 9th Circuit Chief Judge Alex Kozinski entered an order dated November 19, 2009 on the matter of Karen Golinski, a staff attorney for the 9th Circuit Court of Appeals. Judicial branch employees such as Golinski are Federal employees and therefore have their benefits administered by the Office of Personnel Management (the same folks Obama and Harry Reid want to administer their poor excuse of a substitute for the Public Option). Based upon the OPM’s stated position, the contracted benefits carrier (Blue Cross/Blue Shield) refused to provide health benefits for her same sex legal spouse, Amy Cunninghis.

From Judge Kosinski’s November 19 Order:

Karen Golinski has been denied a benefit of federal employment because she married a woman rather than a man. I previously determined that violates this court’s guarantee of equal employment opportunity. To avoid a difficult constitutional problem, I harmonized the Defense of Marriage Act (DOMA), 1 USC §7; the statutes creating the benefit program at issue, the Federal Employees Health Benefits Program (FEHBP), 5 USC §8901 et seq.; and this court’s commitment to equal employment opportunity.

I then entered [an] order

No “party or individual aggrieved” by my decision appealed it.

The Administrative Office of the United States Courts (AO) complied with my order and submitted Ms. Golinski’s form 2089 to the Blue Cross and Blue Shield Servie Benefit Plan, Ms. Golinski’s health insurance carrier. That’s as it should be; the AO is subject to the “supervision and direction” of the Judicial Conference of the United States, 28 USC §604(a), and I exercised authority delegated by the Judicial Conference when I ordered relief. After the AO submitted Ms. golinski’s form, I thought this matter had concluded.

The Executive Branch, acting through the Office of Personnel Management (OPM), thought otherwise. It directed the insurance carrier not to process Ms. Golinski’s form 2089, thwarting the relief I had ordered. (citations omitted)

That is the basic tale of Golinski and Kozinski. Since the November 19 Order the above language was taken from, the situation has become even more exacerbated by the intransigence of the Obama Administration and its OPM which, either comically or tragically depending on one’s view, is headed by John Berry who the Administration made a big show of touting as its highest ranking openly gay official.

The irony just oozes. After further refusal and contempt of his clear order, which the Administration never appealed, Read more

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.

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