Stronger Than the Storm: Disaster Law in a Defiant Age

• Author: Alexander B. Lemann
• Position: Assistant Professor of Law, Marquette University Law School; J.D., Columbia Law School; A.B., Harvard College.
• Pages: 437-497

Stronger Than the Storm: Disaster Law in a Defiant

Age

Alexander B. Lemann*

TABLE OF CONTENTS

Introduction .................................................................................. 437

I. Advance and Retreat .................................................................... 445

II. The Impulse to Rebuild ................................................................ 457

A. Recovery as Revenge ............................................................. 458

1. Revenge in Tort Theory .................................................. 458

2. Against Nature: Revenge in the Disaster

Context ............................................................................ 461

B. Recovery as Culture ............................................................... 467

C. Recovery as Resistance .......................................................... 474

D. Other Factors ......................................................................... 479

III. Repair Without Rebuilding .......................................................... 484

A. Suing the Storm ..................................................................... 485

B. Culture, Relocated ................................................................. 488

1. Resettlement .................................................................... 489

2. Memorials ....................................................................... 492

C. Resistance, Redirected ........................................................... 496

Conclusion .................................................................................... 497

INTRODUCTION

On September 30, 2005, almost exactly a month after Hurricane

Katrina made landfall, the mayor of New Orleans convened a group of

Copyright 2018, by ALEXANDER B. LEMANN.

* Assistant Professor of Law, Ma rquette U niversity Law School; J.D.,

Columbia Law School; A.B., Harvard College. T he author would like to thank

Vince Blasi, Amanda Cook, Michael Diamond, Heidi Feldman, Robert Ferguson,

Greg Klass, Catherine Powell, David Pozen, Brad Snyder, Amy Uelmen, Robin

West, and workshop participants at Georgetown and Marquette and at Arizona

State University’s Sustainability Conference o f American Legal Educators for

helpful and insightful comments.

438 LOUISIANA LAW REVIEW [Vol. 78

civic leaders to begin the process of rebuilding the city.1 The civic leaders,

known as the Bring New Orleans Back Commission (“BNOB”), faced a

staggering task: 80% of the city had been under a toxic soup of floodwater

in the wake of the storm, and the Corps of Engineers had finished pumping

it out only a week earlier.2 The city government was in disarray. None of

the major functions associated with urban life in modern America was

operating normally.3 Vast swaths of the city had no electricity or drinking

water, and the police force was in shambles.4 Order was being maintained

by the National Guard, and with the city jail flooded, prisoners were being

held in makeshift cages made of chain-link fences and razor wire built

inside the city’s Amtrak station.5 The bodies of those killed in the storm

were still largely unaccounted for.6

Behind the immediate chaos, a broader question loomed: how should

the city rebuild? In the months following the storm, a study conducted by

the RAND Corporation at the request of the BNOB estimated that the parts

of the city that had been under more than four feet of water would regain

no more than 30% of their population within three years.7 Foreseeing

sparsely populated neighborhoods heavily sprinkled with abandoned,

rotting houses, most experts believed that attempting to maintain the city’s

original footprint with only a fraction of its population was a recipe for

disaster.8 Meanwhile, the intense devastation meted out on the city

highlighted what appeared at the time to be an unavoidable truth: many of

the city’s neighborhoods sat well below sea level and thus would never be

truly safe.9 The only way to keep New Orleanians out of harm’s way for

the indefinite future, it seemed, was to move them to higher ground.

To address this issue, the BNOB called in a set of experts: a panel of

urban planning professionals from around the country affiliated with the

1. GARY RIVLIN, KATRINA: AFTER THE FLOOD 158 (2015).

2. Id. at 124–26.

3. Id. at 159–61.

4. Id. at 122.

5. Id.

6. Id. at 123, 126–27.

7. K EVIN MCCAR THY E T A L., R AND GULF STATES POL’Y INST., THE

REPOPU LATION OF NEW ORLEANS AFTER HURR ICANE KATRINA 27 ( 2006),

http://www.rand.org/content/dam/rand/pubs/technical_reports/2006/RAND_TR36

9.pdf [https://perma.cc/P34P-M7J6].

8. See Richard Campanella, Delta Urba nism and New Orleans: After,

PLACES J. (Apr. 2010), https://placesjournal.org/article/delta-urbanism-and-new-

orleans-after/ [https://perma.cc/U32Q-RM7B].

9. T imoth y M. Kusky, Time to move to higher ground, BOS. GLOBE ( Sept.

25, 2005), http://archive.boston.com/news/globe/editorial_opinion/oped/articles

/2005/09/25/time_to_move_to_higher_ground/ [https://perma.cc/93GE -86X8].

2017] STRONGER THAN THE STORM 439

Urban Land Institute, whose members flew to New Orleans in November

2005 to conduct a “summit” and come up with a solution to the “footprint

problem.”10 After a few weeks of study and a handful of public meetings,

the group released its preliminary findings: a set of the worst-flooded

neighborhoods in New Orleans, the BNOB argued, should be abandoned

and allowed to revert to “green space.”11 These determinations eventually

landed on the front page of the New Orleans Times-Picayune, accompanied

by a large map depicting the neighborhoods slated for abandonment covered

by opaque green circles.12

The “green dot map,” as it came to be known, triggered a political

firestorm.13 Displaced residents reacted with fury to the idea that they

would be forbidden from returning to their homes and reconstructing their

lives, and meetings held after the plan became public were jammed with

people objecting forcefully to the idea of the city government preventing

them from rebuilding.14 Within a week, the mayor announced that he

would oppose the plan’s call for a moratorium on building permits in the

green dot neighborhoods.15 The BNOB was unceremoniously disbanded,

10. RIVLIN, supra note 1, at 168–69.

11. Frank Donze, Don’t Wr ite Us Off, Residents Warn: Urban Land Institute

Report Takes a Beating, TIMES-PICAYUNE, Nov. 29, 2005, at A1.

12. Frank Donze & Gordon Russell, 4 Months to Decide: Nagin Panel Says

Hardest Hit Ar eas Must Prove Via bility; City’s Footprint May Shrink; Full Buyouts

Proposed for Those Forced to Move; New Housing to Be Developed in Va st Swa ths

of New Orleans’ Higher Ground, TIMES-PICAYUNE, Jan. 11, 2006, at A1.

13. Richard Campanella, A Ka trina Lexicon: How We Talk About a Disaster

So Monumental We Can’t Agree on What to Call It, PLACES J. (July 2015),

https://doi.org/10.22269/150727 [hereinafter Campanella, A Katrina Lexicon]

[https://perma.cc/DG6S-HS9C]; ROBERTA BRANDES GRATZ, WE’RE STILL HERE

YA BASTARDS: HOW THE PEOPLE OF NEW OR LEANS REBUILT THEIR CITY 4 1

(2015) (noting that the green dot map was “explosive” and “galvanized a potent,

citywide opposition”).

14. See Frank Donze, Let Us Decide on Rebuilding, Residents Say: Don’t

Stymie Neighborhoods, City Officials Told at Meetings, TIMES-PICAYUNE, Jan. 15,

2006, at B1 [hereinafter Donze, Let Us Decide]; Gordon Russell & Frank Donze,

Rebuilding Proposal Gets Mixed Reception: Damaged Neighborhoods Must Prove

Viability; Critics Vocal at Meeting, but Most Content to Watch and Wait, TIMES-

PICAYUNE, Jan. 12, 2006, at A1.

15. RIVLIN, supra note 1, at 217. The mayor explained that he was “a property-

rights person” and that he believed that the people of New Orleans could “decide

intelligently for themselves where they want to rebuild.” Id. He later insisted that

the city could make no promises in terms of restoring services to the neighborhoods

in question: “If you go in those areas, God bless you . . . . We’ll try to provide you

with support as best we can. But understand we’re concentrating city resources in

the areas that are in the immediate recovery zone.” Id. at 239.