Hurricane Katrina Suit Tests Government Liability

April 20, 2009— -- The victims of Hurricane Katrina, their lives uprooted and homesteads washed away, will finally get their day in court today as a landmark trial opens in New Orleans to consider whether the government made a deadly storm even worse.

The accused culprit in this legal dispute is nicknamed Mr. GO, the Mississippi River Gulf Outlet that the federal government cut through 76 miles of swamps and cypress forests to make shipping easier between the Crescent City and the Gulf of Mexico.

The people who filed the lawsuit -- six survivors of the area's hurricanes -- claim Mr. GO magnified Katrina's power by destroying wetland buffers and funneling wind-whipped water into the city.

"It has been a catastrophe ever since it was built," said John Andry, the lawyer for the plaintiffs in the case.

But the government argues that it cannot be sued over Mr. GO, claiming protection under a 1920s federal law and the principle of sovereign immunity. Besides, there was nothing seriously wrong with Mr. GO -- and little that could have lessened Katrina's destructive power, say the government's lawyers.

"The catastrophe would have occurred regardless of the MRGO and regardless of the way the channel was maintained prior to the flood," the lawyers wrote in their legal brief.

The stakes are unprecedented: If the plaintiffs win, tens of thousands of other Katrina victims will likely win their lawsuits as well, making the federal government liable for up to $100 billion in damages, according to Army Corps of Engineers estimates. That would be more than any court judgment in U.S. history, according to legal experts.

That the case has made it this far is itself extraordinary. Over the almost four years since Katrina hit, dozens of lawsuits seeking damages for broken levees and other failed hurricane defenses have foundered on the government' defense of immunity.

The federal Flood Control Act shields the government from liability for defective flood-control projects. And another law says the government can't be sued for acting with reasonable care or making a judgment call.