In September 2018, as the year's hurricane season began to set in, the Center for Progressive Reform published a compilation of articles by more than a dozen of the nation's leading legal scholars, offering a series of recommendations for disaster planning, mitigation, and recovery, with a particular focus on social justice. As CPR President Rob Verchick writes, "Catastrophe is bad for everyone. But it is especially bad for the weak and disenfranchised." The report, From Surviving to Thriving: Equity in Planning and Recovery (PDF), examines the failures of current public policy that were on display in the lead-up to and in the wake of Hurricanes Harvey, Irma and Maria in 2017. It explores the ways U.S. policy and law have exacerbated the harm from disasters, and offers a series of recommendations that would make natural disasters less likely and more survivable, helping communities to protect themselves where possible, and to recover from disasters that cannot be prevented. Following is the executive summary to that report. Follow the links to individual chapters below, or download the entire report in PDF.
By any definition, Hurricanes Harvey, Irma, and Maria, the trifecta of storms that pummeled Texas, Florida, Puerto Rico, and the Virgin Islands in the summer and fall of 2017, were historic disasters. But they were not disasters beyond human imagining. Indeed, given the increase in record weather events driven by climate change, we must be prepared for disaster on this scale and worse. Because such weather events and the carnage they cause are foreseeable, it’s vital to anticipate them, not just in our disaster planning, but in the way we build our communities, transportation networks, power grids, and more — all so that when disasters strike, we can prevent or mitigate the worst effects, saving lives and protecting property.
In 2017, we failed. Power outages in Florida claimed lives after Irma. Massive flooding did the same in Houston in Harvey’s wake, and large-scale emissions of toxic chemicals from plants and hazardous waste sites built in floodplains turned Harvey’s floodwaters into a toxic brew. And the collapse of Puerto Rico’s power grid caused the lion’s share of the more than 1,400 deaths officially acknowledged as resulting from Maria. The weather catastrophes were compounded by human disaster — the failure to plan and prepare and the inadequacy of our existing health, safety, and environmental safeguards.
Unsurprisingly, those hit hardest by the storms and their aftermath were among our society’s most vulnerable. As co-author Rob Verchick writes, “Catastrophe is bad for everyone. But it is especially bad for the weak and disenfranchised.” Wealthier neighborhoods tend to be on higher ground than poorer ones. Industrial plants rarely abut million-dollar homes, but they are commonly built adjacent to low-income neighborhoods. The wealthy have better access to evacuation methods and routes, and to health care in the wake of the storm, if they need it. In these and many other ways, the social inequities that imperil the health and safety of low-income Americans are magnified and exacerbated in an emergency.
In this report, the Center for Progressive Reform has brought together more than a dozen of the nation’s leading legal scholars to address different aspects of the nation’s disaster planning and its environmental, health, and safety standards, with a particular view to mitigating the social inequities laid bare by last year's storms. The policy solutions they propose will not stop hurricanes or other disasters from occurring. But they could make their impact far less severe by taking toxic chemicals and other dangerous hazards out of the path of storms so that they would not poison those who come into contact with floodwaters; they could make the power grid more agile and adaptable to power shortages and outages; they could reduce the incentives to build in flood zones; they could better protect the health and safety of recovery workers; they could improve disaster response so that it serves all Americans, not just those in wealthier neighborhoods; and they could future-proof vital infrastructure — roads, bridges, pipes, wires — against the creeping effects of climate change that exacerbate the impact and increase the frequency of major storms.
One theme emerges repeatedly in the scholars’ examination of the issues: the need for better planning before storms strike. Indeed, many of the authors draw on the adage that an ounce of prevention is worth a pound of cure. Better planning, wiser allocation of resources, smarter growth, a clear-eyed reading of science, a commitment to equity — all these factors would improve our preparation before and our response after disasters, helping people and communities survive disasters and go on to thrive in their wake.
What Should Be Done?
In his preface to the report,Sidney Shapiro discusses the role of government in helping build social resilience, particularly in the context of disaster planning and recovery. He writes:
The lack of preventive measures and planning for resilience signals a failure in our basic commitment as a nation to ensure a fair chance in the race of life and the right to rise. We can do better, and this report indicates how we should start.
The scholars go on to offer a number of key recommendations, touching on many aspects of disaster preparedness and recovery, and holding the promise of significant positive impact. Among the proposals:
Resilience and adaptation should be mainstreamed, part of the mission of every local, state, and federal agency whose work affects climate change and disaster planning and recovery, from public works departments to waste disposal to public information. Similarly, social equity concerns should be accounted for in planning and recovery, and resources made available when needed to address inequities. That effort should also include a focus on modes of participation and communication so that communities are not shut out of discussions about their future. (Alice Kaswan, Alyson Flournoy, Rob Verchick)
The scholars offer several recommendations related to disaster preparedness and response, including:
Disaster response should be a partnership between federal, state, and local governments. But the Federal Emergency Management Agency (FEMA) should consider the resources and capacity of its partners in its planning. Wealthy states like Texas, California, and Florida are better positioned than poorer states and territories, like Louisiana, Mississippi, and Puerto Rico. Also, the federal government needs to increase its surge capacity, which was overwhelmed by the trio of storms that hit in 2017. Multiple storms could be more common in the future because of climate change. In addition, FEMA’s flood maps are badly out of date, and on their accuracy much depends. They need revision, perhaps in phases, to account for sea-level rise, changes in topography, and better modeling. (Daniel Farber)
A recently adopted law on levee safety has made little headway, apparently because FEMA and the Army Corps of Engineers lack the resources to conduct the studies required and have yet to issue even voluntary federal safety guidelines. Congress should provide FEMA and the Corps the resources they need to do a better job protecting the nation’s levees. To buttress the nation’s dams, the president should reinstate his predecessor’s flood safety executive order, or Congress should do so by legislative means. The order established flood safety requirements and has since been repealed by President Trump. In addition, FEMA needs to be more explicit about the uncertainties in its flood modeling and conduct research to improve it. (Daniel Farber)
It is past time to reform the National Flood Insurance Program so that it does not incentivize construction in flood zones. Congress should phase out federal subsidies for NFIP while providing premium support to low-income homeowners that reduces their risk of loss. In addition, Congress should review and strengthen incentives for local governments to adopt limits on new development in floodplains and insist that the flood maps on which so much hinges are updated to reflect true risks. In addition, state legislatures should require disclosure of true flood risk to property buyers in flood zones. (Christine Klein, Alyson Flournoy)
Local governments play a key role in mitigating the potential damage from disasters, and state governments should support local planning efforts, making resources available and helping steer them toward valuable information and strategies. States should also insist that local planners adequately consider the disaster risks in all aspects of their planning by, for example, considering sea-level rise and future flood risk in their comprehensive planning processes. In addition, states and the federal government should provide funding to provide protection for low-income communities or the means for them to retreat when necessitated by climate change. (Alice Kaswan, Alyson Flournoy, Rob Verchick)
With climate change already beginning to force community relocation and migration, and more of the same on the way, it is vital for federal and state governments to support various local strategies, including land acquisition and planning processes. Nonprofit organizations will play a special role in relocation and migration planning, as well, providing pro bono legal assistance to support land acquisition and offering technical assistance to help empower and amplify local voices in the planning process. In addition, while there is little hope that the Trump administration will reassert a federal role in the planning process, eventually, the federal government will need to return to the task of supporting planning efforts. (Maxine Burkett, David Flores)
The nation’s power grid delivers electricity that is vital to daily life and sorely missed in disasters. The grid has aged and needs modernization. Regulators must find ways to accommodate “prosumers” — consumers that produce their own power and thus contribute to the grid — and accommodate renewables as they become more cost-competitive. More broadly, subsidization of large central power stations should stop;utilities, with a nudge from appropriate regulations, should invest in a smart grid that can manage clean and variable energy resources such as solar and wind; and utilities must continue to invest in and explore options for power storage. (Joseph P. Tomain)
Health and safety measures take on added importance in the wake of disasters. The scholars offer several recommendations in this area, including:
Local governments should increase their use of green infrastructure, which can provide additional protection from flooding by allowing stormwater to find permeable surfaces. The federal government should prod local governments to adopt more green infrastructure best practices. (Evan Isaacson)
Protection for first responders and disaster recovery workers from on-the-job hazards is often given short shrift. The Occupational Safety and Health Administration (OSHA) is badly underfunded, hobbling its ability to develop safeguards for emerging hazards and its enforcement of existing hazards. Congress should act. OSHA should move to develop safety standards for workers covering heat stress, ergonomics, and infectious diseases, particular problems in storm recovery, and it should enforce its standards during recovery operations, rather than routinely suspending them. (Katie Tracy)
As storms approach, it is common for governors to declare states of emergency, which, among other things, allow for the suspension of specific rules and regulations protecting health, safety, and the environment. In Texas after Harvey, many of these rules remained suspended eight months after the storm, even though they posed no meaningful impediment to disaster recovery. One result was more than 100 releases of toxic emissions that polluted land, water, and air. EPA should require facilities covered by key environmental laws to plan for control of emissions during and after disasters. EPA should also require that adequate records of emissions are kept and made available to the public, and it should ensure that state suspensions of federal environmental reviews will sunset after two weeks and be subject to federal review. (Victor Flatt)
One particularly dangerous hazard during flood events is emissions from Superfund sites. Better methods of remediating sites are necessary to prevent such releases during storms. EPA should issue a rule or guidance making clear that simply “capping” hazardous wastes will rarely be sufficient for a final cleanup, and it should be certain local communities are made aware of proposals to cap. EPA should require sites with permits for hazardous waste to develop emergency and disaster plans. In addition, EPA should develop a rule on chemical spills from plants discharging into the waters of the United States. (Victor Flatt, Joel Mintz)
Public information plays a vital role in protecting communities before, during, and after disasters. The scholars offer several recommendations in this area, including:
The National Environmental Policy Act (NEPA) requires environmental impact assessments of federal actions that significantly affect the environment. But the requirement is often ignored, particularly by the current administration. As the effects of climate change begin to cascade, the failure to observe the requirement is all the more harmful. EPA should enforce NEPA’s assessment requirements. In addition, the Council on Environmental Quality (CEQ) should require all agencies to incorporate climate change analysis into environmental impact statements. (Joel Mintz)
The Emergency Planning and Community Right-to-Know Act requires companies that store or handle toxic chemicals to make information about toxic releases and their emergency plans available to the public. Such information is invaluable to first responders and the public at large in times of emergency. But the law is weakly and sporadically enforced, leaving responders and residents in the dark about deadly hazards. EPA should effectively enforce EPCRA, granting waivers sparingly. The agency would do well to follow the model of the FDA’s risk-communication system, built around plain-language circulars and direct-to-consumer messaging. (Rebecca Bratspies, Sarah Lamdan, Victor Flatt)
Although the courts’ role in mitigating the impacts of disaster are not as plain to the eye as that of legislators, governors, and presidents, their decisions can powerfully affect the extent to which people and communities are exposed to risk in disasters. The report concludes with discussions of specific constitutional and common law issues affecting disaster planning and recovery. Among the scholars’ observations:
The Supreme Court’s current view of “takings” has had a chilling effect on coastal regulators, hampering efforts to control development in areas vulnerable to storms. Over time, the overwhelming evidence of sea-level rise could spur the Court to overturn or narrow its reading of the lead case in this area, Lucas v. South Carolina Coastal Council. On the other hand, the Court’s eminent domain jurisprudence offers an important tool that could be used in the future to spur community relocation in the face of sea-level rise. (John Echeverria)
Efforts to press companies to hold polluters accountable via tort law have been hampered by rulings that federal common law preempts state tort law. Ideally, the Supreme Court should create a clear standard for preemption of state common law by federal common law that accounts for the importance of state law in the U.S. system. (Karen Sokol)