STEVE INSKEEP, HOST:
This week, a federal appeals court said U.S. Army Corps of Engineers cannot be held liable for the catastrophic flooding that took place in New Orleans after Hurricane Katrina. NPR's Kathy Lohr reports on a setback for hundreds of homeowners who sued.
KATHY LOHR: The Mississippi River Gulf Outlet, known as MRGO, was a shortcut between New Orleans and the Gulf of Mexico. The plaintiffs contend the shipping channel was not maintained properly, that it increased the storm surge from Hurricane Katrina. Federal Judge Stanwood Duvall agreed with residents back in 2009, and a panel of the 5th Circuit Appeals Court upheld that landmark decision in March. But on Monday, the same panel reversed itself, saying the government cannot be held liable under the Federal Tort Claims Act.
JOHN ANDRY: It's a travesty is what it is.
LOHR: John Andry is one of the plaintiffs' attorneys. He says St. Bernard Parish was devastated.
ANDRY: You had 26,000 structures, only four of which didn't flood. And then to have a trial court decision say that the Corps was monumentally negligent and malfeasant, and then have a court of appeal effectively immunize them is worse than disappointing.
LOHR: In the earlier ruling, the court said the government made scientific errors about the risks of not shoring up levees that protected St. Bernard Parish and the Lower 9th Ward. Therefore, the Corps could be held liable for damages. Now the court says the government cannot be held responsible. This time, the court said the decisions were public policy considerations, which are immune from prosecution. Emory law professor Jonathan Nash.
JONATHAN NASH: It's largely the same opinion, but they sort of say, well, we're going to give the government the benefit of the doubt and say that they're entitled to immunity. So the upshot is that that the government gets immunity, which means that the plaintiffs can't collect.
LOHR: Plaintiffs' damages could amount to billions of dollars, as thousands lost homes and businesses. Experts following the case say this decision was a complete surprise. Mark Davis is head of the Tulane Institute on Water Resources Law and Policy.
MARK DAVIS: This is clearly a message that, when it comes to liability suits like this, it's going to be hard to win if this ruling stands.
LOHR: Plaintiffs' attorneys say they will appeal. The US Army Corps of Engineers says it is reviewing the decision and referred calls to the US Justice Department, which had no comment. Kathy Lohr, NPR News, Atlanta. Transcript provided by NPR, Copyright NPR.
