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, Marquette University Law School; J.D., Columbia Law School; A.B., Harvard College. The 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 of 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. KEVIN MCCARTHY ET AL., RAND GULF STATES POL’Y INST., THE REPOPULATION OF NEW ORLEANS AFTER HURRICANE 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 Urbanism and New Orleans: After, PLACES J. (Apr. 2010), https://placesjournal.org/article/delta-urbanism-and-new-orleans-after/ [https://perma.cc/U32Q-RM7B]. 9. Timothy 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 Write 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 Areas Must Prove Viability; City ’ s Footprint May Shrink; Full Buyouts Proposed for Those Forced to Move; New Housing to Be Developed in Vast Swaths of New Orleans ’ Higher Ground, TIMES-PICAYUNE, Jan. 11, 2006, at A1. 13. Richard Campanella, A Katrina 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 ORLEANS REBUILT THEIR CITY 41 (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, TIMESPICAYUNE, 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. 440 LOUISIANA LAW REVIEW [Vol. 78 and all talk of retreat was off the table. 16 New Orleanians would be free to rebuild where they saw fit. The utter failure of New Orleans’s attempt to enforce retreat from its most vulnerable areas is best seen as the opening act in a drama that is likely to play out across the United States over the course of the next few decades. Although predicting the exact amount of sea level rise the world is likely to experience in any particular span of time is impossible, conservative estimates project roughly three feet of increase in sea level by 2100. 17 At least one recent study has suggested that seas could rise by several feet within the next 50 years. 18 The effects of a several-foot increase in sea levels are likely to be dramatic. One study estimated that a three foot increase in sea level would displace roughly 4.2 million Americans, and a six foot increase would displace 13.1 million Americans. 19 Indeed, the effects of inundation are already beginning to be felt. Routine tidal flooding is disrupting life in many coastal communities, closing streets, killing plants, polluting water supplies, and making roads impassable. 20 Inundation caused by rising sea levels is only one aspect of 16. Richard Campanella, “ Bring Your Own Chairs ”: Civic Engagement in Postdiluvial New Orleans, in CIVIC ENGAGEMENT IN THE WAKE OF KATRINA 23, 35 (Amy Koritz & George J. Sanchez eds., 2009) [hereinafter Campanella, “Bring Your Own Chairs” ]. 17. Justin Gillis, Seas Are Rising at Fastest Rate in Last 28 Centuries, N.Y. TIMES (Feb. 22, 2016), http://www.nytimes.com/2016/02/23/science/sea-level-rise-global-warming-climate-change.html [https://perma.cc/9Z7F-YZTP]. 18. Justin Gillis, Scientists Warn of Perilous Climate Shift Within Decades, Not Centuries, N.Y. TIMES (Mar. 22, 2016), http://www.nytimes.com/2016/03/23...