A new report from the National Research Council on Friday slams a long-delayed Army Corps of Engineers hurricane protection study, saying it fails to recommend a unified, comprehensive long-term plan for protecting New Orleans and the Louisiana coast.
You know the story: as Hurricane Katrina swept across New Orleans, the city’s levee system broke apart and billions of gallons of water poured into the city. Two independent forensic engineering reports (here and here) found the levee failures were caused by a series of design and construction flaws, stretching back over decades, which were overseen, in all details, by the U.S. Army Corps of Engineers. The Corps has never refuted that basic point.
Congress ordered the Corps to develop plans for a more aggressive flood-control system for the Louisiana coast, insisting the Corps present “a final technical report for Category 5 protection.” (The surge associated with a Category 5 storm has about a 0.2% chance of occurring in any given year. A Katrina-level surge has about a 0.25% chance of occurring in any given year.)
According to the NRC:
Despite being given authority from the U.S. Congress for this project over three years ago, the [Army Corps’s] draft final technical report does not offer a comprehensive long-term plan for structural, nonstructural, and restoration measures across coastal Louisiana, nor does it suggest any initial, high-priority steps that might be implemented in the short term. Instead, a variety of different types of structural and nonstructural options are presented, with no priorities for implementation.
You can read more about these criticisms in Mark Schleifstein’s excellent piece in the New Orleans Times-Picayune.
Here, I want to focus on a legal point that is a lynchpin in the whole dispute. The problem with the Army Corps of Engineers' report is that it lays out a buffet of 27 alternative planning unit-level plans, but gives no indication of which ones should be pursued or what should be done next. As a result, the whole process could slip into a self-induced coma.
The Corps argues that it has no choice, that it lacks the authority to set priorities. But that’s wrong.
In its legislation, Congress directed the Corps to perform “a comprehensive hurricane protection analysis and design.” As part of that effort, Congress told the Corps to “develop and present a full range of flood control, coastal restoration, and hurricane protection flood control, coastal restoration, and hurricane protection measures.” The Corps says it has completed its task by providing a “full range of . . . measures.” What about setting priorities? What about an “analysis and design”? According to the Corps, that phrase is just a redundancy and has no independent meaning.
As a regulatory lawyer, I’m unconvinced. First, the phrase does have independent meaning. We know that because the “analysis and design” command was added to the law in 2006 by amendment after the statute was first passed in 2005. You don’t amend a statute to add a redundancy. Second, the word design, unlike the word measures, is in the singular. That means Congress expected the Corps to recommend a single course. If lawmakers wanted a choice of 27 designs they would have said so.
The language is clear. But even if it weren’t, the Corps is given wide berth to interpret ambiguous language so as to pursue its charge – which in this case is to protect the lives and property of southern Louisiana.
Now is not the time for the Army Corps to argue for its limitations. Instead it’s time for that agency to remember its motto, “Essayons” -- Let Us Try!