Katrina trial: New Orleans' truth commission

Lorraine Washington left her still-wrecked house in New Orleans East on Tuesday to seek the answer to a question that has plagued her every day since hurricane Katrina sank the Crescent City under a wall of water: Why?

Her destination: Federal district court, where six plaintiffs are suing the US Army Corps of Engineers over the creation and maintenance of the Mississippi River Gulf Outlet ("Mr. GO"), a shipping channel that they say introduced fatal risk to a fragile levee-protection system. The government argues that the magnitude of the storm, by itself, caused the flooding of New Orleans, the deaths of more than 700 city residents, and $90 billion of damage across the region.

"I have to believe that justice is going to be received, that we're going to be made whole again," says Ms. Washington, an unemployed government clerk. She says she attended the trial in an attempt to finally understand the physical, geological, and political forces that created not the storm, but its horrid aftermath.

A win by the plaintiffs – six hurricane survivors, including a local TV news anchor and his wife – in this "first real Katrina trial" could pave the way for a class-action lawsuit against the Corps, as well as set the tone for future US coastal policy.

But for many New Orleanians – especially those in the hard-hit St. Bernard Parish, New Orleans East, and the Lower Ninth Ward – the Mr. GO trial represents their own form of truth commission: It's a chance not just to lay blame, but also to bridge what has been called a "deep gorge of distrust" between residents and the US agency charged with protecting them from the sea.

"Someone has to take responsibility, if only to make sure processes and policy are improved and grievances are addressed," says Silas Lee, a sociologist at Xavier University in New Orleans, who adds that uncertainty over the city's flood control has stymied the return of a third of the city's residents. "People want closure to this."

A Category 3 hurricane, Katrina tore through New Orleans on a Monday morning. On Tuesday, as the sun shone and residents began to relax, water came pouring through the streets as high waters broke and overtopped levees.

In the Lower Ninth Ward, Jimmy Braxton's sister climbed with her two small kids into the attic. Holding the kids, she craned for air as the water rose. Another relative swam to the house and busted through the roof. She had to let go of one of the kids to reach through the hole. Only one child survived.

Today, Mr. Braxton lives with that image – and his sister's choice – every day. The fact that a favorable verdict in the Mr. GO case could mean a future class-action lawsuit – possibly with cash damages for residents – doesn't assuage him.

"How can you pay us for my family's loss or put a price on these scars?" said Braxton, a graying, lanky black man standing on a deserted street in the Lower Ninth Ward on Tuesday. "No dollar amount in the world can heal the pain and suffering" of watching the storm's devastation.

At the same time, he adds, "If the Corps didn't do its job, somebody should be held responsible. Somebody's got to answer to something."

At stake in the trial is between $10 billion and $100 billion in possible damages, on top of the $107 billion that US taxpayers have already poured into the rebuilding of New Orleans and the devastated Mississippi Gulf Coast.

The federal Flood Control Act gives the Corps broad immunity and discretion, acknowledging the unforeseen risks that are implicit when people carve into the natural environment. But by allowing the case to go to court, the judge in the Mr. GO case rejected the Corps' assertions of "sovereign immunity" from lawsuits involving floods.

"If successful, this case will set the tone for the future and enable people in St. Bernard Parish, New Orleans East, and the Lower Ninth Ward to seek redress for damages for what happened to them," says Elisa Gilbert, one of the attorneys for the plaintiffs.

Created in the 1960s – a decade, according to testimony, when the motto was "build anything" – the Mr. GO canal provided an alternate and shorter route for cargo ships from New Orleans to the Gulf of Mexico.

But the channel, coastal geologists have testified in this case, also increased salinity in the storm-slowing swamps, marshes, and tupelo stands that protected New Orleans' east side, killing much of the vegetation. And it created a "great pipe" to move storm surges straight into the city. After 30 years of warnings, the Corps in the late 1990s began moving to close Mr. GO but "dragged its heels," according to Sherwood Gagliano, an expert witness.

Duke geologist Orrin Pilkey, who has written several books about the Corps, says the Mr. GO trial could determine Washington's liability for a piecemeal coastal policy – and serve notice to Congress that a "major societal debate" needs to take place about the Corps' role, especially as coastal areas like the Mississippi Delta begin to see the effects of sea-level rise.

"For me, the best outcome would not be monetary, but forcing a change" in the Corps' unusual funding arrangement with Congress, says Mr. Pilkey. The Corps is the only US agency that relies entirely on earmarks – or "pork-barrel" funding – for its budgetary survival, creating, in Pilkey's view, an unhealthy relationship that undermines the Corps' ability to plan and make sensible recommendations.

Nationally, the Mr. GO case could inspire a bevy of lawsuits against the government and the Corps, also forcing Congress to get involved, says Erich Rapp, a Baton Rouge-based lawyer who blogs on coastal issues. A middle position would be for Congress to ask the US Court of Federal Claims "to look at the federal government's culpability" in preventing disasters like Katrina, Mr. Rapp says.

Then 79 years old, Harold Brehmer traversed the worst-flooded parts of St. Bernard Parish for three days after Katrina, at one point getting lost and climbing a baseball field fence to find high ground. He explains how huge water spouts came out of the sewers and "water came down the streets at 100 miles per hour." For three days, his family thought he was dead.

Today, Mr. Brehmer is one of tens, perhaps hundreds, of thousands of people who could be eligible for damages if federal district judge Stanwood Duval finds the Corps exhibited clear negligence in the building and maintenance of Mr. GO. Brehmer had to spend more than $20,000 of his own money to fix his small house in Chalmette, not counting heaps of charity help.

Though he plans to join a class-action lawsuit, his worldview remains sanguine.

"I'm not angry," he says. "I'm lucky."