Superstorm Sandy at Five: Lessons on Law as Catalyst and Obstacle to Long-Term Recovery Following Catastrophic Disasters
| Date | 01 June 2018 |
| Author |
48 ELR 10494 ENVIRONMENTAL LAW REPORTER 6-2018
Superstorm Sandy
at Five: Lessons on
Law as Catalyst
and Obstacle to
Long-Term
Recovery Following
Catastrophic
Disasters
by Donovan Finn and
John Travis Marshall
Donovan Finn is an Assistant Professor of Environmental
Design, Policy, and Planning in the Sustainability Studies
Program and School of Marine and Atmospheric Sciences at
Stony Brook University. John Travis Marshall is an Assistant
Professor of Law, Georgia State University College of Law.
Summary
Nine of the 10 costliest U.S. hurricanes on record have
ravaged the Atlantic and Gulf Coasts in the rst two
decades of the 21st century, yet federal, state, and local
governments continue to struggle with devising an e-
cient and eective way to help cities and towns recover.
is Article focuses on law-related obstacles encoun-
tered during the disaster response and recovery post-
Superstorm Sandy. It considers how Sandy’s long-term
recovery can inform the deliberations of cities nation-
wide regarding the strengths and potential vulnerabili-
ties of their local laws, institutions, and capacities for
promoting resilient recovery. e authors conclude by
suggesting six takeaways to guide communities in the
United States facing potential hazards-related risks.
Hurricane Sandy has often been referred to as a
“wake-up call” for the most densely populated
regions of the United States, which includes New
York City, coastal New Jersey, and suburban Long Island
(New York).1 Most would agree that this region is cur-
rently thriving. It rebounded vigorously from the devas-
tating September 11 terrorist attacks and is home to some
of the country’s most valuable real estate, iconic cultura l
landma rks, and productive industries.2 However, Sandy
exposed the region’s fundamental and ongoing vulnerabil-
ity to major hazards and illustrates how all communities,
even those with access to na ncial and technical resources
and possessing experience with recovery, can face struc-
tural challenges that complicate recovery. e storm not
only served as a wake-up ca ll about the region’s lack of
physical protection from extreme events and slow-onset cli-
mate change, but also served notice t hat the existing legal
infrastructure for recovery3 wa s, and remains, inadequate.
Authors’ Note: Research for this Article was supported by funding
from the National Science Foundation (Award #1335109) and
Georgia State University College of Law. Participants in the 2017
Vermont Law School Colloquium on Environmental Scholarship
provided valuable feedback, including Stephen Dycus, Ed Richards,
Amy Hardberger, Jane Cohen, and Bret Wells. Dr. Ann-Margaret
Esnard and Je omas, Esq., also shared expert input. e authors
thank Max Bowen for his research assistance.
1. See, e.g., Beth Gardiner, Britain Haunted by Risk of Flooding, N.Y. T,
Mar. 21, 2013 (“Hurricane Sandy was a wake-up call around coastal ood-
ing”), http://www.nytimes.com/2013/03/22/business/energy-environment/
britain-haunted-by-risk-of-ooding.html; D F R,
infra note 18, at 5.
2. See Konrad Putzier, NYC vs. the World, R D N.Y., Oct. 1, 2015
(discussing New York City’s rising real estate prices and their continuing
climb that will likely outpace other expensive cities such as Hong Kong
and London in the near future), https://therealdeal.com/issues_articles/
nyc-vs-the-world/; TripAdvisor, Top 25 Landmarks—United States (as of
April 19, 2018, ve of the top 10 landmarks in the United States are in
New York City), https://www.tripadvisor.com/TravelersChoice-Landmarks-
cTop-g191 (last visited Apr. 19, 2018); IHS G I, U.S. M
E (2013) (New York City and northern New Jersey areas have
almost double the gross metropolitan product of the next highest city in
the United States), https://web.archive.org/web/20150305224230/http://
www.usmayors.org/metroeconomies/2013/201311-report.pdf.
3. We write more than ve years after Sandy’s destructive landfall to consider
lessons emerging from the New York metropolitan region’s long-term re-
covery. Generally speaking, “recovery” begins as the immediate disaster “re-
sponse” phase ends. Response includes search and rescue and emergency
food and shelter provision. e “recovery” phase, which follows, includes
“timely restoration, strengthening and revitalization of infrastructure, hous-
ing and a sustainable economy, as well as the health, social, cultural, his-
toric and environmental fabric of communities aected by a catastrophic
incident.” See F E M A (FEMA),
U.S. D H S, N P
G (2d ed. 2015), available at https://www.fema.gov/media-library-
data/1443799615171-2aae90be55041740f97e8532fc680d40/Nation-
al_Preparedness_Goal_2nd_Edition.pdf. See also John Travis Marshall et
al., Core Capabilities and Capacities of Developer Nonprots in Postdisaster
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
6-2018 NEWS & ANALYSIS 48 ELR 10495
Foundational to city resilience are laws and policies.4
ese range from federal programs that fund recovery
projects, to local comprehensive plans and zoning codes, to
state constitutional provisions and statutes. As post-Sandy
rebuilding eorts have illustrated, and as major natural
disasters preceding Sa ndy have also proven, the laws and
policies that guide federal, state, and loca l government
recovery activities can impede—instead of facilitate—
robust and equitable rebuilding eorts. If, before an event,
a community fails to addre ss potential deciencies with the
statutes, ordinances, policies, and procedures relevant to
recovery, then these shortcomings may frustrate recover y
from future disasters.
In response to the lessons learned after Sandy, the
region’s local and state governments have expended signi-
cant eort to update state and local codes and lobby for
changes to federal policy.5 e federal government has also
begun to address some of these issues. 6 But the chal lenges
are far from resolved. ese issues a lso have important
implications well beyond the New York and New Jersey
region most directly aected by Sa ndy, and oer lessons for
sister cities of all sizes. e pitfal ls that have revealed them-
selves over the past ve years have common pathology to
the miscues and oversights documented during long-term
recovery processes that have previously unfolded in other
regions of the country. In other words, the same types of
challenges faced by the New York City region’s residents,
businesses, local governments, and states may be pertinent
Community Rebuilding, 18 N. H R. 05016004 (2017) (“Long-
term disaster recovery begins when neighborhood rebuilding is poised to
commence. is is generally about the time homes and vehicles have been
cleared from the streets, but also when housing, roads, sewers, libraries, and
parks remain in ruin.”); Elizabeth Kent, “Where’s the Cavalry,” Federal Re-
sponse to 21st Century Disasters, 40 S U. L. R. 181, 194-95 &
n.103 (2006) (quoting David McLoughlin, A Framework for Integrated
Emergency Management, 45 P. A. R. 165, 166 (1985) (recovery
includes the “long-term activities that return life to normal”)).
4. See, e.g., D A. F ., D L P 345-64,
369-90 (2d ed. 2010); Anna K. Schwab & David J. Brower, Increasing Resil-
ience to Natural Hazards: Obstacles and Opportunities for Local Governments
Under the Disaster Mitigation Act of 2000, 38 ELR 10171, 10173-74 (Mar.
2008); Patricia E. Salkin, Sustainability at the Edge: e Opportunity and Re-
sponsibility of Local Governments to Most Eectively Plan for Natural Disaster
Mitigation, 38 ELR 10158, 10158 (Mar. 2008); John R. Nolon, Disaster
Mitigation rough Land Use Strategies, 23 P E. L. R. 959, 963-
64 (2006). See also John Travis Marshall, Rating the Cities: Constructing a
City Resilience Index for Assessing the Eects of State and Local Laws on Long-
Term Recovery From Crisis and Disaster, 90 T. L. R. 35, 36-41 (2015).
5. See Samuel Greengard, Eye on the Storm: Engineering a Post-Sandy Recovery,
E I., Sept./Oct. 2017, at 16 (“Hurricane Sandy forced every-
one, including the government and the engineering industry, to completely
rethink the way infrastructure is built, maintained and upgraded. e policy
changes and code changes resulting from Sandy will have a hugely posi-
tive impact in the years ahead.”), http://www.dewberry.com/docs/default-
source/default-document-library/eye-on-the-storm-engineering-inc-2017.
pdf?sfvrsn=0.
6. See Sandy Recovery Improvement Act, Pub. L. No. 113-2, 127 Stat. 5
(2013). President Barack Obama signed the Sandy Recovery Improvement
Act into law on January 29, 2013.
to subsequent recoveries, including those recently com-
menced in Florida, Puerto Rico, and Texas following the
2017 hurricane season.
is Article ex amines the programs that New York City,
the state of New York, and the state of New Jersey cre-
ated to help deliver desperately needed federa l assistance to
residents and businesses throughout the region.7 As m ight
be expected of any multibillion-dollar enterprise conceived
and developed in a matter of just a few months, these pro-
grams had aws and shortcomings. Among the challenges
the city and the states faced were federa l funding sources
constricted by rigid regulations and local government laws
ill-suited to the exigencies of disaster recovery. We focus
on these law-related obstacles encountered during the post-
Sandy disaster response and recovery, highlighting ways
that state and local governments attempted to work within
the constraints of exist ing legal structures to develop local ly
eective recovery programs. We also identif y how certain
laws emerged as structural barriers to community recovery
following Superstorm Sandy.
e Article proceeds as follows. Par t I provides a brief
overview of Hurricane Sandy, its widespread devastation of
New York and New Jersey, and the New York City metro
area’s distinctive urban form and socioeconomic prole—
both characteristics that set the Sandy recovery challenge
apart from almost every other major U.S. disaster recovery
experience. Mindful that the U.S. government’s response
to Sandy introduced major changes to federal disaster
response and recovery programs, Part II furnishes a suc-
cinct history of federal involvement in disaster response
and recovery leading up to October 2012.
Part III specical ly outlines the major laws and pro-
grams that the federa l, state, and local governments used to
manage the Sandy response and recovery eorts. Despite
important renements and improvements to federal laws
and programs that followed Hurricane K atrina and the
2008 Iowa oods, Hurricane Sandy revealed critical aws
in the federal, state, and local coordination of disaster
recovery. Part IV details Sandy’s gloss on the several key
disaster response a nd recovery programs.
With the benet of ve years’ hindsight, Part V takes
a critical look at the nation’s second most expensive disas-
7. A separate important inquiry surrounds the steps that the New York City
region has taken—and must take in the future—to ensure its resilience to
future storms and climate-related challenges. is Article does not focus
specically on the legal dimensions of New Jersey and New York’s post-
Sandy eorts to promote urban resilience. ere are a range of resources to
consult on this critical issue. See, e.g., Sarah Adams-Schoen, Sink or Swim:
In Search of a Model for Coastal City Climate Resilience, 40 C. J. E.
L. 433 (2015); Jessica Grannis et al., Preparing for Climate Impacts: Lessons
From the Frontlines (July 2014), available at https://kresge.org/sites/default/
les/Preparing%20for%20Climate%20Impacts%20-%20Georgetown%20
Climate%20Center.pdf; Andrea McArdle, Storm Surges, Disaster Planning,
and Vulnerable Populations at the Urban Periphery: Imagining a Resilient New
York After Superstorm Sandy, 50 I L. R. 19 (2014).
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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