Ed Thomas

Natural Hazard Mi-ga-on Associa-on www.nhma.info

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March 17-19, 2011 New Orleans, LA

Edward A. Thomas, Esq.

[email protected] 617-515-3849

BUILDING RESILIENCE WORKSHOP II


Good Day! §  I appear today represen-ng: The Natural Hazard Mi-ga-on Associa-on This is not and cannot be legal advice This is a statement of general principles of ethics, law and policy

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Key Themes § We Need To Think Broadly To Solve Our Serious Problems § We Must Stop Making Things Worse § Right Now We Have A System Which Rewards Dangerous Behavior

§ We Need To Remove Bad Incen-ves, Reward Good Planning, Safe Building, and Safe Reconstruc-on


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To Set the Stage For Our Discussion

§ Lets discuss some basics of Law §  In the Law-‐especially criminal law-‐ AQorneys oRen seek to iden-fy someone else to take the blame

§ For increased flood damages that “Someone Else” is oRen…


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Mother Nature


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Does Nature Cause Disasters?

§  Dr. Gilbert White, the late, great, founder of the interna-onally recognized Natural Hazards Center, headquartered in Colorado, stated the facts:

“Floods are Acts of Nature; But Flood Losses Are Largely Acts of Man”


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I Hope All of You Will Agree

§ Among the Most Clear Lessons of The Horrific Floods of this Decade: §  There Is No Possibility of A Sustainable Economy Without Safe Loca-ons for Business and Industry to Occupy

§  We Need Safe Housing for Employees to Work at Businesses and Industry – to Have an Economy at All


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Trends in Flood Damages

§ Flood losses and reported flood heights are increasing

§ Demographic trends indicate great future challenges

All Shareholders Can Also Contribute to Increased Risk! Residual Risk Can Be Increased

RISK

Vastly Increased Residual Risk

Ini-al Risk

Cri-cal Facili-es Not Protected From Flooding

Levees Not Properly Designed/Maintained

Lack of Awareness of Flood Hazard-‐Lack of Flood, Business Interrup-on, DIC Insurance

Increased and more Costly Development

No Warning/Evacua-on Plan-‐ or A Poorly Developed and Exercised Plan

Fill in floodplain or Wildfires Increases Flows

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Safe Development Is Affordable § The American Ins-tutes for Research has conducted a detailed study on the cost of floodproofing and eleva-on

§ That study supports the idea that eleva-on and floodproofing costs add very small sums and have a significant societal payback

§ The Mul-hazard Mi-ga-on Council, a group which includes private industry representa-ves, reports that hazard mi-ga-on has a proven 4-‐1 payback

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The Choice of Development or No Development is a False Choice! The Choice We Have as a Society is Rather Between:

1. Well planned development that protects people and property, our environment, and our precious Water Resources while reducing the poten-al for li-ga-on; or

2. Some current prac-ces that are known to harm people, property, and natural floodplain func-ons-‐

… and may lead to li-ga-on and other challenges 12


Why Are Governments Not Ac-ng To Prevent Harmful Development?

§ NOAA Just Completed A Study Which Surveyed Planners As To Impediments To Safe Development

§ Two Major Reasons Cited:

§ Fear of the “Taking Issue”

§ Economic Pressure 13



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§ When One Group Pays Maintenance or Replacement of Something Yet Different Person or Group Uses That Same Something, We ORen Have Problems

§ Disaster Assistance Is An Classic Example of Externality

§ Who Pays For Disaster Assistance? § Who Benefits?

Reason #1 For Insufficient Standards: Economics and Externality


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Who Pays For Disaster Assistance?

§ Costs of flooding are usually largely borne by: a) The Federal and Some-mes the State Taxpayer

Through IRS Casualty Losses, SBA Loans, Disaster CDBG Funds, and the Whole Panoply of Federal and Private Disaster Relief Described in the Ed Thomas and Sarah Bowen Publica-on "Patchwork Quilt” (Located at: h*p://www.floods.org/PDF/Post_Disaster_ Reconstruc>on_Patchwork_Quilt_ET.pdf

b) By Disaster Vic-ms Themselves


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Cui Bono? (Who Benefits?)…

§ From Unwise or Improper Floodplain Development-‐ a) Developers? b) Communi-es? c) State Government? d) Mortgage Companies? e) The Occupants of Floodplains?

Possibly in the short-‐term, but definitely NOT in the long-‐ term


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Why Should Government Do Something About This?

§ Fundamental Duty § Protect The Present § Preserve A Community’s Future


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Why Else Should Government Do Something About This?

§  In a Word:

Liability


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Floods and Li-ga-on

§ When Someone Is Allegedly Damaged by the Ac-ons of Others Who Pays?

§ This is a Fundamental Ques-on of Law.


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Three Ways to Support Reconstruc-on Following Disaster Damage

1.   Self Help: Loans, Savings, Charity, Neighbors 2.   Insurance: Disaster Relief is a Combina-on of

Social Insurance and Self Help 3.   Li-ga-on

The preferred alterna-ve is… To have NO DAMAGE

Due to Land Use and Hazard Mi-ga-on


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Reason #2 Why Safer Standards Are Not Implemented:

Concerns About A “Taking”


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Taking Lawsuit Results: § Regula-ons clearly based on Hazard Preven-on and fairly applied to all: successfully held to be a Taking – almost none! § Many, many cases where communi-es and landowners held liable for harming others


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Examples of Situations Where Governments Have Been Held Liable

§ Construc-on of a Road Blocks Drainage § Stormwater System Increases Flows § Structure Blocks Watercourse § Bridge Without Adequate Opening § Grading Land Increases Runoff § Flood Control Structure Causes Damage § Filling Wetland Causes Damage §  Issuing Permits for Development Which Causes Harm to a Third Party


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Hazard Based Regulation And The Constitution

§ Hazard Based Regula-on Generally Sustained Against Cons-tu-onal Challenges

§ Goal of Protec-ng the Public Accorded ENORMOUS DEFERENCE by the Courts


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Why Should Government Do Something About This?

§ Fundamental Duty § Protect The Present § Preserve A Community’s Future


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Is There A Government Right to Prevent Harm?

§ Does Government Have a “Duty to Prevent Injurious Consequences from Floods?


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Why Go Beyond the Current Minimum Standards?

Flood damages are continuing and/or increasing unnecessarily!

Current approaches deal primarily with how to build in a floodplain vs. how to minimize future damages


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No Adverse Impact Floodplain Management (Such as Higher Standards for Floodplain Management)

§ What is “No Adverse Impact” Floodplain Management”?

§ ASFPM defines it as “…an Approach that ensures the ac/on of any property owner, public or private, does not adversely impact the property and rights of others”


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No Adverse Impact Explained

NAI is a concept/policy/strategy that broadens one's focus from the built environment to include how changes to the built environment potentially impact other properties.

NAI broadens property rights by protecting the property rights of those that would be adversely impacted by the actions of others.


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What Is The Result Of Implemen-ng Higher Standards? § PROTECTION OF THE PROPERTY RIGHTS OF ALL § Legally Speaking, Preven-on of Harm is Treated Quite Differently Than Making the Community a BeQer Place.

§ Preven-on of Harm to the Public Is Accorded Enormous Deference by the Courts


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Higher Standards:

§ Are consistent with the concept of sustainable development

§ Provide a pragma-c method for regula-on § Make sense on a local and regional basis § May be rewarded by FEMA’s Community Ra-ng System, especially under the new CRS Manual

§ Can reduce the poten-al for li-ga-on against a community


A Conserva-ve, Property Rights View

§ The Cato Ins-tute Indicates that Compensa-on is Not Due When:

“… regula/on prohibits wrongful uses, no compensa/on is required.”


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Hazard Based Regulation And The Constitution

§ Hazard based regula-on is generally sustained against Cons-tu-onal challenges

§ Goal of protec-ng the public accorded ENORMOUS DEFERENCE by the Courts


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Summary § Higher Regulatory Standards Are:

A) Legal B) Equitable C) Prac-cal D) Defensible in Court E) Supported by good economic analysis F) The very basis of sustainability G) Rewarded under the Community Ra-ng

System


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Take Away Messages For Today Preven-on § We Throw Money At Problems ARer They Occur

§ We Can Pay A LiQle Now; Or Society Pays Lots Later

§ The Legal System Is Ready To Help Society Pay Later


Some Messages to Floodplain & Emergency Managers From My Nego-a-ons Training

§ Floodplain & Emergency Mangers Have to Stop Being The Abominable No People!!

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Find A “Yes”

§ We Are For Development § We Are For Safe Place For Our Ci-zens To Live § We Must Consider Others When We Develop § Channel Any Emo-on Into Ac-on


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Steps to Uncover the “Yes”

§ Never Start With “NO!” § We Are Against NO § Start With What We Are For § We Want Your Development! § We Need The Tax Revenue


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If Needed: Develop A Well Thought Out-‐Clear NO! § Know Your Stuff § Develop a Plan B § Build a Coali-on-‐Partnerships § Who Shares Your Interests? § Take Away Their Ability To Launch A Surprise AQack § Consider The Worst Case § Consider The Worst Case If You Have To Live With A Yes, When You Should Have Said No

§ The Mirror Test


If It Is A Good Project...

§ Yes. § Yes.

§ Yes! 41


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Take Away Message

§ Responsible For Community Development? §  Many Areas Can Flood §  Uninsured Vic-ms Will Likely Sue-‐If They Can Find Someone to Blame

§  Fair Harm Preven-on Regula-on Helps Everyone


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Take Away Message

§ Community Leaders Have Responsibility for Public Safety and Need To Be Aware: §  Many Areas Can Flood §  Uninsured Vic-ms Will Likely Sue-‐ and will try to find someone to blame

§  Fair Harm Preven-on Regula-ons Help Everyone


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Message For All Involved In Community Development

§ The Fundamental Rules of Development Ar-culated, By Law, Envision Housing and Development Which Is: §  Decent §  Safe §  Sanitary §  Affordable


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Flooded Development Fails That Vision!

§ Housing And Development Which Flood Are: §  Indecent §  Unsafe §  Unsanitary §  Unaffordable-‐ by the Flood Vic-ms, By Their Community, By The State, and By Our Na-on.


Summary

§ Fundamentally Our Society Must Choose Either: BeQer Standards to Protect Resources and People or Standards Which Inevitably Will Result in Destruc-on and Li-ga-on

The higher regula-ons which this Workshop is promo-ng are a step in the Right Direc-on

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Questions and Answers

Documents

Ed Thomas