Lawsuits have consequences

New York Law School Professor David Schoenbrod makes a compelling argument in today's Wall Street Journal that New Orleans would have had effective floodgates against Katrina had it not been for a frivolous lawsuit over 'environmental consequences'. The tree-huggers, predictably, are reacting in rage.

After Hurricane Betsy swamped New Orleans in 1965, President Lyndon Johnson stroked its citizens ("this nation grieves for its neighbors") and pledged federal protection. The Army Corps of Engineers designed a Lake Pontchartrain Hurricane Barrier to shield the city with flood gates like those that protect the Netherlands from the North Sea. Congress provided funding and construction began. But work stopped in 1977 when a federal judge ruled, in a suit brought by Save Our Wetlands, that the Corps' environmental impact statement was deficient. Joannes Westerink, a professor of civil engineering at Notre Dame, believes the barrier would have been an "effective barrier" against Katrina's fury.

All this was reported in the Los Angeles Times on Sept. 9. The reactions of environmental advocates and federal agencies show why we would be a lot safer if the federal government did a lot less.

Speaking for environmentalists, the Center for Progressive Reform called the charges in the Los Angeles Times "pure fiction" because the judge stopped construction only until the Corps prepared a satisfactory environmental analysis. The Corps instead dropped the barrier in favor of levees that were less controversial, but which failed. So, the Center argues, fault lies with the Corps' bumbling rather than with the environmentalist lawsuit.

That's not fair. The Corps cannot stop a project, conduct a lengthy study, go back to court, and then be sure it can pick up where it left off. Large federal projects ordinarily cannot proceed unless executives and legislatures at several levels of government agree on the same course of action at the same time. That's why litigation delay can kill necessary projects. However responsibility is apportioned, but for the lawsuit, New Orleans would have had the hurricane barrier.

This lawsuit killed a barrier that would have saved a thousand lives. The Vioxx lawsuit and those like it, as the Monk mentioned, could do even greater damage if it prevents Big Pharma from aggressively researching new medicines and bringing them to market. A case in point are vaccines where the slender profit margins could easily be erased by a silly lawsuit so there aren't enough manufacturers.