Immunity under the Provisions of the Louisiana Homeland Security and Emergency Assistance and Disaster Act: An Analysis of Case Law in Relationship to Pending Litigation

The effect of Hurricane Katrina on New Orleans was catastrophic and longlasting. Katrina is the costliest, as well as one of the deadliest, natural disasters in the history of the United States. Eighty percent of New Orleans was flooded after the failure of levees bordering the 17th Street, London Avenue and Industrial canals. The United States Army Corps of Engineers (hurricane protection systems nationwide); Orleans Levee District (levee and floodwall maintenance); and Sewerage and Water Board of New Orleans (drainage 1899 to present) are key to the case study. This study traces the historical relationship between these governmental entities in connection with flood protection. The study began after the filing of massive class action litigation against the Corps of Engineers, Orleans Levee District and Sewerage and Water Board following Hurricane Katrina. The Louisiana Homeland Security and Emergency Assistance and Disaster Act of 1993 provided the boundaries for the study. A detailed analysis of the legislative history and legislative process added meaning and depth to the study. A comprehensive review of jurisprudence interpreting the act, particularly § 735 is the heart of the study. The act provides for immunity of personnel employed by the state, political subdivisions or agencies thereof…engaged in any homeland security and emergency preparedness activities… The Orleans Levee District and Sewerage and Water Board of New Orleans\u27 assertion that the immunity provision of § 735 applied to the discharge of their respective statutory responsibilities under state law in advance of, and following Katrina, is examined in context of the plaintiffs\u27 allegations for the levee and floodwall failures. The study concludes that § 735 is in dire need of overhaul given the judicial rulings rendered to date in the state and federal class court action litigation. Additional research is needed on the federal, state and local level to develop legislation that will effectively and unquestionably render the state, political subdivisions or agencies thereof engaged in any homeland security and emergency preparedness activities immune from liability retroactively, now and in the future, in light of the recent narrow interpretation of the act by the courts