ELR Citation: 42 ELR 20197
No(s). 10-30249 (5th Cir. Sep 24, 2012)

The Fifth Circuit withdrew its prior ruling and held that the discretionary function exception to the Federal Tort Claims Act (FTCA) shields the U.S. Army Corps of Engineers from liability for flood damage stemming from Hurricane Katrina. Plaintiffs argued that the Corps should be held liable for their failure to properly maintain the Mississippi River Gulf Outlet (MRGO), thereby allowing Katrina's surge to flood portions of Louisiana. Because MRGO is a navigational channel whose design, construction, and maintenance cannot be characterized as flood-control activity, the court rejected the government's argument that the Flood Control Act immunizes the Corps against liability. But the government does enjoy immunity under the FTCA's discretionary function exception. Plaintiffs argued, among other things, that the exception should not apply because NEPA's impact-review requirement constituted a legal mandate that overrides the Corps' discretion. But NEPA is a procedural statute and does not require any particular outcome. At most, the Corps abused its discretion—an abuse explicitly immunized by the discretionary function exception.