Law and Recovery From Disaster: Hurricane Katrina

Robin Paul Malloy, Robin Paul Malloy

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781351922845
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

In August of 2005, Hurricane Katrina hit the Gulf Coast of the United States, directly affecting 1.5 million people. Only one year earlier, an Indian Ocean tsunami struck Indonesia, destroying or damaging more than 370, 000 homes. As forces of nature, hurricanes, tsunamis, earthquakes and floods are not limited to occurrences in any one community or any one country. In Law and Recovery from Disaster: Hurricane Katrina, attention is focused on the ability of law and legal institutions to not only survive such disasters but to effectively facilitate recovery. Using Hurricane Katrina as a lens, contributors address a wide range of issues of interest to people concerned about property law, disaster preparedness, housing, insurance, small business recovery, land use planning and the needs of people with disabilities. While Hurricane Katrina is the focal point for discussion, the lessons learned are readily applicable to a variety of disaster situations in a wide range of global settings.

Chapter 1
Law Among the Ruins

Jim Chen

Hurricanes and Heartbreak

Hurricane Katrina broke America's collective heart. No previous natural disaster in the nation's history inflicted a grimmer toll. The legendary city of New Orleans all but sank when its levees failed and the resulting storm surge drowned much of the city and many of its feeblest, most vulnerable residents. The flood waters consumed the forlorn hope that the United States could rescue its citizens during their darkest and neediest hour. Although Katrina exposed flaws in virtually every aspect of disaster management at every level of government in the United States, the magnitude and senselessness of the loss indicted American society for its callous disregard of social vulnerability.

"The moral test of government," said Vice President Hubert H. Humphrey, "is how it treats those who are in the dawn of life, the children; those who are in the twilight of life, the aged; and those who are in the shadows of life, the sick, the needy and the handicapped."¹ The cloud of natural disaster puts government to an extreme test of its ability to protect those citizens who dwell in the dawn, the twilight, and the shadows of life. As Katrina demonstrated, social vulnerability profoundly affects the ability of governments to prepare for, respond to, mitigate, and recover from natural disasters.

Conservative estimates of Katrina's economic impact range in the hundreds of billions of dollars, measured strictly in terms of compensation, insurance, and reconstruction. Lawyers will continue to be heavily involved for years in disputes connected to recovery and resettlement after that storm. Despite Katrina's deep impact, we have no reason to believe that a single event in 2005 can provide the last word on disasters and what disasters demand of the law. Katrina merely represents one recent—albeit very dramatic—demonstration of serious gaps in the legal system's ability to respond to natural disasters and other catastrophic events.²

From the chaos of catastrophe, a form of legal order emerges. At first glance, disaster law seems to be nothing but a collection of legal rules that happen to come into play when communities have suffered severe physical damage. Upon deeper examination however, we should regard disaster law as the enterprise of assembling the best portfolio of legal rules to deal with catastrophic risks. That portfolio should include strategies for prevention emergency response, mitigation compensation and insurance, and rebuilding.

The chapters in this volume focus Syracuse University's annual workshop on property, citizenship, and social entrepreneurship on the vital task of building the arsenal of legal tools for addressing and redressing natural disasters. Two chapters—Debra Lyn Bassett. Place, Disasters, and Disability, and Janet E. Lord. Michael E. Waterstone and Michael Ashley Stein, Natural Disasters and Persons with Disabilities—answer Hubert Humphrey's moral challenge very directly by examining the impact of disasters on the disabled. The combination of disaster and disability strains the law and other social systems to the utmost. Nearly half of the elderly population affected by Katrina. for instance, reported having at least one disability.³ Erin Ryan, in How the New Federalism Failed Katrina Victims,⁴ criticizes the United States' traditional commitment to federalism and the thorough delegation of police powers to state and local governments. Despite post-Katrina amendments of the Stafford Act, emergency response in the United States remains in the first instance the responsibility of state and local governments. Moreover, the federal law of emergency response retains the mark of the Homeland Security Act, which reorganized FEMA within a bureaucratic structure dedicated in the first instance to responding to terrorism and acts of war, and only secondarily to natural threats. Decisions such as Sher v. Lafayette Insurance Co.,⁵ in which the Louisiana Supreme Court held that the standard policy exception for "flood" damage relieves insurance companies of liability for water damage caused by the failure of New Orleans's levees during Hurricane Katrina. highlight the importance of Aviva Abramovsky, Insurance and the Flood, and Robert J. Rhee, Participation and Disintermediation in a Risk Society.

Five additional chapters in this volume—Frank S. Alexander, Land Use Planning by Design and by Disaster; Michèle Alexandre, Navigating the Topography of Inequality Post-Disaster: A Proposal for Remedying Past Geographic Segregation During Rebuilding; Olympia Duhart and Eloisa C. Rodriguez-Dod, Legislation and Criminalization Impacting Renters Displaced by Katrina; John A. Lovett, Property and Radical Change: Observations on Property Relationships from Post-Katrina New Orleans; and Rodney C. Runyan and Patricia Huddleston, Small Business Recovery from a Natural Disaster: Lessons from Katrina—address the core issues of property law that Syracuse University's PCSE Center considers most closely related to citizenship and social entrepreneurship. No less central a figure in post-Katrina law and politics than Walter Isaacson, vice-chair of the Louisiana Recovery Authority, experienced the intensely personal nature of urban planning in the hurricane's wake.⁶ Initially an advocate of aggressive, top-down urban planning as a precondition to the actual disbursement of Community Block Development Grants and other publicly controlled recovery funds. Mr. Isaacson reversed field when he learned that much of his family's neighborhood. Broadmoor, had been targeted for bulldozing and conversion into green space. One may applaud Mr. Isaacson's belated appreciation of the fact that a planning official's preferred "urban footprint" demands the bulldozing of someone else's neighborhood. From a broader perspective, though, the greater challenge lies in ensuring that recovery after disasters—to say nothing of prevention before they strike and mitigation and rescue efforts during a catastrophe—satisfies broader notions of social justice.

In this introduction, I wish to strike a single, unifying note. There is no such thing as a "natural" disaster. Understanding the interplay of environmental events with social conditions holds the key to the optimal application of legal tools for preventing, mitigating, and remedying natural tragedies—a grand social exercise that I call "law among the ruins."

Disaster Is Never Natural: Social Vulnerability and Resilience

Natural disaster supposedly does not discriminate; it putatively strikes everyone in its path, without regard to race, class, age, sex, or disability. In more vivid terms, "poverty is hierarchic, smog is democratic."⁷ Closer examination of the interplay between natural and social factors at work in any disaster, however, belies this assumption. Disaster does not so much erase as expose social vulnerabilities within the society it strikes. Although "'[n]atural disasters' such as hurricanes, earthquakes, and floods are sometimes viewed as 'great social equalizers'" in the sense that "they strike unpredictably and at random, affecting black and white, rich and poor, sick and well alike," Katrina bluntly demonstrated that "the harms are not visited randomly or equally in our society."⁸ What is true of the disaster itself applies with even greater force to social responses to disaster. To name but one example as striking as it is embarrassing, "68 percent of [the] respondents" in a survey of Katrina evacuees "thought the federal government would have responded more quickly if people trapped in the floodwaters were 'wealthier and white rather than poorer and black. '"⁹

In short, disasters are never strictly "natural," Catastrophic losses invariably stem from social as well as environmental factors. Around the world, social injustice contributes so heavily to the incidence and intensity of natural disasters that the quest for domestic and global equality may be rightfully regarded as a valuable tool for refining the law's approach to disaster preparedness, response, mitigation, compensation, and recovery.

The first step in overcoming natural disaster lies in defining social vulnerability. According to one definition, social vulnerability means "the characteristics of a person or group in terms of their capacity to anticipate, cope with, resist, and recover from the impact of a natural hazard."¹⁰ Geographer Susan Cutter has elaborated this definition in a very useful way: "Social vulnerability is partially a product of social inequalities—those social factors and forces that create the susceptibility of various groups to harm, and in turn affect their ability to respond, and bounce back (resilience) after the disaster,"¹¹

In other words, social vulnerability consists of two distinct components: the susceptibility of certain groups to harm and the resilience of these groups. Susceptibility is an ex ante quality; it is already in place when disaster strikes. Inequality in New Orleans and elsewhere throughout America has taken hundreds of years to build. Differences in living conditions, wealth, and political power rendered the poorest, often black victims of Katrina susceptible to disproportionate loss during the storm.

Resilience, by contrast assumes importance after the fact. Rebuilding communities destroyed by natural disaster demands extraordinary human and material resources. Material resources available for recovery—and often taken for granted—in more affluent communities may simply not exist in poorer communities. Crucial physical and social infrastructure, often strained or undermined by disaster and its aftermath, is not as readily reestablished.¹²

Katrina played itself in media reports as a grand tragedy of race and class, of official incompetence and social injustice. If anything, the condemnation of a society that found itself unprepared for Katrina has not been severe enough. To prevent or at least to mitigate future disasters, we must confront social vulnerability in all its manifestations, from its racial and class-based dimensions to other vectors of discrimination laid bare by the storm, such as sex, age, disability, and immigrant status. All of these factors contribute to the susceptibility of specific individuals and groups to disaster. In addition to recognizing and making best efforts to ameliorate these sources of susceptibility to harm during disasters, government owes its weakest citizens a corresponding responsibility to maximize their resilience in disaster's wake.

In other words, the entire battery of legal tools designed to prevent and mitigate natural disaster might be profitably reimagined as a twofold challenge for the law. First, law must seek to minimize social susceptibility before the next natural event becomes a social catastrophe. Second, during times of relative tranquility, the law should strive to improve resilience within vulnerable communities so that they might recover more rapidly and effectively should disaster strike. By addressing both of these dimensions of social justice in times of disaster, the chapters in this volume represent a significant step toward the fulfi...