Ed Thomas

Natural
Hazard Mi-ga-on Associa-on www.nhma.info
BUILDING RESILIENCE WORKSHOP II

March 17-19, 2011 New Orleans, LA Edward A. Thomas, Esq. edwathomas@aol.com 617-515-3849 1
Natural Hazard Mi-ga-on Associa-on www.nhma.info
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
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 3
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 ood damages that Someone Else is
oRen
Mother Nature
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
I Hope All of You Will Agree

Among the Most Clear Lessons of The Horric 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
Trends in Flood Damages

Flood losses and reported ood heights
are increasing
Demographic trends indicate great future
challenges
Ini-al Risk No Warning/Evacua-on Plan- or A
Risk! All Shareholders Can Also Contribute to Increased

Residual Risk Can Be Increased
Poorly Developed and Exercised Plan Fill in oodplain or Wildres Increases Flows Lack of Awareness of Flood Hazard-Lack of Flood, Business Interrup-on, DIC Insurance Cri-cal Facili-es Not Protected From Flooding Increased and more Costly Development Levees Not Properly Designed/Maintained
Vastly Increased Residual Risk RISK

10
Safe Development Is Aordable

The American Ins-tutes for Research has conducted a
detailed study on the cost of oodproong and eleva-on That study supports the idea that eleva-on and oodproong costs add very small sums and have a signicant 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 11
Choice We Have as a Society is Rather Between: The

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 oodplain func-ons- and may lead to li-ga-on 12 and other challenges
The Choice of Development or No Development is a False Choice!
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
Reason #1 For Insucient Standards: Economics and Externality

When One Group Pays Maintenance or
Replacement of Something Yet Dierent 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 Benets? 15
Who Pays For Disaster Assistance?

Costs of ooding 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.oods.org/PDF/Post_Disaster_ Reconstruc>on_Patchwork_Quilt_ET.pdf b) By Disaster Vic-ms Themselves 16
Cui Bono? (Who Benets?)

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 denitely NOT in the long- term

17
17
Why Should Government Do Something About This?
Fundamental Duty Protect The Present Preserve A Communitys Future
18
18
Why Else Should Government Do Something About This?

In a Word:
Liability
19
19
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.
20
20
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
21
Reason #2 Why Safer Standards Are Not Implemented: Concerns About A Taking
22
22
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
23
23
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 Runo Flood Control Structure Causes Damage Filling Wetland Causes Damage Issuing Permits for Development Which Causes Harm
to a Third Party
24
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
25
25
Why Should Government Do Something About This?

Fundamental Duty Protect The Present Preserve A Communitys Future
26
26
Is There A Government Right to Prevent Harm?

Does Government Have a Duty to Prevent
Injurious Consequences from Floods?
27
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 28
28
No Adverse Impact Floodplain Management

What is No Adverse Impact Floodplain
(Such as Higher Standards for Floodplain Management)
Management? ASFPM denes 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 29
29
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.
30
30
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 Dierently Than Making the Community a BeQer Place. Preven-on of Harm to the Public Is Accorded Enormous Deference by the Courts 31
31
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 FEMAs Community Ra-ng System, especially under the new CRS Manual Can reduce the poten-al for li-ga-on against a community 32
32
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.
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
34
34
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
35
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
36
36
Some Messages to Floodplain & Emergency Managers From My Nego-a-ons Training

Floodplain & Emergency Mangers Have to Stop
Being The Abominable No People!!
37
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
38
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
39
If Needed: Develop A Well Thought Out-Clear NO!

Know Your Stu 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
40
If It Is A Good Project...
Yes.

Yes.
Yes!
41
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
42
42
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
nd someone to blame Fair Harm Preven-on Regula-ons Help Everyone
43
43
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 Aordable
44
44
Flooded Development Fails That Vision!

Housing And Development Which Flood Are: Indecent
Unsafe Unsanitary Unaordable- by the Flood Vic-ms, By Their
Community, By The State, and By Our Na-on.
45
45
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 46
Questions and Answers
47

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Natural

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

BUILDING RESILIENCE WORKSHOP II

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

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

Planning, Safe Building, and Safe Reconstruc-on 3

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

To Set the Stage For Our Discussion

seek to iden-fy someone else to take the blame

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

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

Does Nature Cause Disasters?

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

I Hope All of You Will Agree

There Is No Possibility of A Sustainable Economy

Without Safe Loca-ons for Business and Industry to Occupy

Businesses and Industry to Have an Economy at All

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

Trends in Flood Damages

Demographic trends indicate great future

Ini-al Risk No Warning/Evacua-on Plan- or A

Risk! All Shareholders Can Also Contribute to Increased

Vastly Increased Residual Risk RISK

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

Safe Development Is Aordable

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

Choice We Have as a Society is Rather Between: The

The Choice of Development or No Development is a False Choice!

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

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

As To Impediments To Safe Development

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

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

Reason #1 For Insucient Standards: Economics and Externality

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

Who Pays For Disaster Assistance?

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

Cui Bono? (Who Benets?)

b) Communi-es? c) State Government? d) Mortgage Companies? e) The Occupants of Floodplains?

Possibly in the short-term, but denitely NOT in the long- term

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

Why Should Government Do Something About This?

Fundamental Duty Protect The Present Preserve A Communitys Future

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

Why Else Should Government Do Something About This?

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

Floods and Li-ga-on

Ac-ons of Others Who Pays?

This is a Fundamental Ques-on of Law.

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

Three Ways to Support Reconstruc-on Following Disaster Damage

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

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

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

Examples of Situations Where Governments Have Been Held Liable

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

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

Hazard Based Regulation And The Constitution

Against Cons-tu-onal Challenges

Goal of Protec-ng the Public Accorded

ENORMOUS DEFERENCE by the Courts

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

Why Should Government Do Something About This?

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