Why the Trinity River Project Could Be a Windfall for the Lawyer Who Sues the Army Corps of Engineers
I love plaintiff's lawyers. I wish they were way richer. I hate "tort reform." Plaintiff's lawyers are cool, because they sue the socks off bullies. That's what this column is about.
I would urge any plaintiff's lawyer who might be reading this column to snip it out of the paper and file it away somewhere. If a son or daughter is following in your footsteps, you might possibly paperclip this column to your will. I think there will be serious money in it some day.
BIG money. Not sort of big. We're talking the kind of numbers you usually see in stories about gross national products. Win this one, and your descendants will be wind-surfing and collecting pre-Columbian pots in Mexico for the next thousand years.
I'm not wishing ill on my community. To the contrary, I wish we could avoid disaster. The Trinity River Project, as currently planned, is dangerous and irresponsible. But since social responsibility and simple conscience seem beyond the grasp of the people pushing it, I'm hoping sheer fear of litigation may slow them down. That's where you come in, my lovely lawyers.
The experts looking at the recent U.S. District Court decision on the U.S. Army Corps of Engineers and Katrina damages in New Orleans are putting the potential total liability of the Corps in the trillions of dollars. That's what I'm talking about. But here. In Dallas.
Down the road—how far I don't know but down the road—somebody stands to take down the Corps, the Federal Highway Administration, the state of Texas, the city of Dallas and the North Texas Tollway Authority for a similar or even bigger prize than what's at stake in New Orleans.
In a November 24 story, The Dallas Morning News reported as fact the following: "The judge's ruling [in New Orleans] that the corps must pay damages to Katrina victims hinges on a legal distinction that is unlikely to be relevant in Dallas. That means that even if the corps were to be blamed for a future flooding catastrophe, it is highly unlikely it would be held legally liable."
Let me explain that for you. That is intended to mean, "Nothing here in Dallas for plaintiff's attorneys. Nope. No action. Might as well not even think about it. Plaintiff's attorneys need not apply."
So, once you interpret that out of Belo-ese, what does that really mean? C'mon. You guys are way ahead of me on this, right? If the Morning News says plaintiff's attorneys need not apply, what should plaintiff's attorneys do?
The truth here is that the breach of sovereign immunity opened by the plaintiff's lawyers in the New Orleans MR-GO (Mississippi River-Gulf Outlet) lawsuit is based on facts that may have significant parallels in the Dallas Trinity River Project.
When the News says no? You go.
For the non-lawyers who may be reading, sovereign immunity is a protection government gives itself from lawsuits. The Corps of Engineers is the civil engineering branch of the Army. Under laws that made the Corps the nation's keeper of all major flood works, special provisions gave the Corps immunity from lawsuits for anything to do with the dams, levees and other flood control projects it builds.
MR-GO (Mister Go, as they call it in New Orleans) is a shipping canal built by the Corps in 1965 as a shortcut from the gulf to the inner harbor of New Orleans. It is not a flood control project.
Plaintiff's attorneys persuaded a federal judge that Mister Go contributed in several big ways to the damages associated with Hurricane Katrina in 2005, mainly by acting as a funnel that brought a huge sea surge right up into the city.
The Corps, of course, said: No way. You can't sue us. This is about flood damage. We're immune on that. But Judge Stanwood Duval Jr. said: Yes way (I paraphrase). You're immune for damages caused by your flood control projects. But you're not immune for flood damages caused by your non-flood-control projects. A shipping canal is a transportation project, not a flood control project.
Let's just pretend for the sake of conversation that some or all of Duval's Mister Go ruling endures the appeals process. What would be the parallel here?
The Trinity River Project in Dallas is a flood control project in name only. Many billions of dollars will be spent on several elements, most of which have nothing to do with flood control.
A multi-lane, high-speed toll road is to be built right out between the flood control levees, next to the river where it floods every spring and fall. Then lakes will be dug. Parks developed. Paved walking trails. Decorative suspension bridges built.
We're all aware, meanwhile, that the basic levee system protecting downtown and Oak Cliff from inundation—22.8 miles of dirt berm on the east and west banks of the Trinity River through central Dallas—has been declared unsafe by the Corps of Engineers.
The Corps, which is responsible for the levees, is trying to put the brakes on the rest of the project, claiming now that it is responsible only for the flood control elements of the plan.
But I am here to tell you there is a very long paper trail reaching back into the origins of the Trinity River Project binding the Corps deeply into the transportation elements of the project. In 2000, back before Bush went dark, Mitchell Daniels Jr., his director of the White House Office of Management and Budget, wrote to the secretary of the Army telling him the White House thought the Trinity River Project was a bad idea.
"The Administration believes that the Corps should not enter into a project cooperation agreement or begin any physical construction work on the authorized project..." his letter said.
Daniels said the Office of Management and Budget suspected the Corps had fiddled the basic numbers justifying the project, especially in justification of new levees downriver, and had ignored simpler, cheaper ways to achieve better flood protection for downtown Dallas.
Why would the Corps do that? A possible answer is that the Corps was designing and even compromising its so-called flood control project to serve the interests of a road project. And in fact, a February 19, 1998, letter—a document you plaintiff's attorneys could get your hands on with a simple Public Information Act demand—sent by Dallas bond lawyer Ray Hutchison to the Texas Attorney General, said the elements of the project were totally and deliberately interdependent from conception.
Hutchison was asking the AG to approve the $246 million Trinity River Project bond issue that Hutchison had crafted for the city of Dallas. But there was a problem. The law says you're not supposed to lump unrelated bond proposals together in one item on an election ballot. If you have bonds for three different kinds of things—flood control, transportation, recreation—then you should split them up into three different propositions on the ballot.
Hutchison, husband of U.S. Senator Kay Bailey Hutchison, argued that the various elements of the Trinity River Project were so tightly woven together and interdependent from the beginning that they really were one project and could not be split up into separate propositions.
The AG agreed. So did the Corps. In statement after statement, Corps officials have professed that they are joined in holy matrimony with the city of Dallas, the state highway department and the toll road authority—well, I guess that wouldn't be quite holy, would it?—in building this great project, very much including the toll road.
In November 2008, Corps Brigadier General Ken Cox took part in a joint press event with the city and other agencies, the point of which was that everyone was working hand-in-hand on the road, the bridges and the whole deal. Cox proudly told reporters, "The Corps is committed to this project. It's a major project for us."
With Cox at his side, a beaming Dallas Mayor Tom Leppert held up an agreement signed by the Corps and the city declaring that their new motto was, "Not saying, 'No,' but saying, 'How do we get to yes?'"
Oh, yeah. You know, I was stopped at a light recently with my window down on Harry Hines, and a lady I don't know from Adam (swear) came up and said something quite similar to me. It was most unwelcome.
Wait, plaintiff's people. I'm not done. In April 2002, U.S. District Judge Terry R. Means ruled in a 62-page decision that the Corps had failed to include all the elements of the Trinity River Project in its original environmental impact study, especially the road. Finding that the road and the flood control project were inextricably bound, Means ordered the Corps to carry out a new study.
That decision came out of a package of litigation, state and federal, crafted by renowned environmental plaintiff's attorney Jim Blackburn of Blackburn & Carter in Houston. Blackburn hired his own hydrologist, who looked closely into the computer models and data used by the Corps to justify its original design for the Trinity River Project. A state judge subsequently refused to look at the hydrologist's evidence.
But I looked at it. And you could too. What you would find is very intriguing evidence to show that the Corps had its thumb on the scale back when its levee improvement project was still in the womb, in order to make sure it would come out in a way that would enable the road project Dallas wanted.
You and I, dear plaintiff's attorneys, hope devoutly that the levees in downtown Dallas will never breach. The ensuing flood, if it happened during the day, would take a dreadful toll in death and mayhem. If the Corps gives in to pressure from Dallas to hurry up its approval of signature bridges and levee repairs, and if those levees ever do blow, the outcome will parallel Katrina.
And if that does happen, I know that you will make them all pay a truly terrible and crushing price. Right now the fear of that price may be our best hope.
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