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
 
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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 Universitys 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 12426.
3. Id. at 15961.
4. Id. at 122.
5. Id.
6. Id. at 123, 12627.
7. K EVIN MCCAR THY E T A L., R AND GULF STATES POLY 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 16869.
11. Frank Donze, Dont 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; Citys 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 Cant 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, WERE 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: Dont
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 . . . . Well try to provide you
with support as best we can. But understand were concentrating city resources in
the areas that are in the immediate recovery zone. Id. at 239.

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