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Recovering from Katrina

New York Law Journal

November 3, 2005
by Stephen L. Kass and Jean McCarrol

How should the environmental community, and environmental lawyers in particular, respond to the widespread devastation visited by Hurricane Katrina on New Orleans and large stretches of the Gulf Coast in Louisiana, Mississippi and Alabama?

This is not an easy question. The scale and severity of adverse impacts involving coastal, estuarine and ground waters, hazardous and solid waste, natural biota, wetlands, transportation facilities, land use, historic resources and neighborhood character demand the most comprehensive environmental assessment in order to avoid repeating, or exacerbating, past mistakes during the redevelopment process. Yet the urgent need to rebuild in New Orleans, to revive economic activity in coastal communities and to promise some reasonably prompt end to the suffering and suspended lives of hundreds of thousands of evacuees requires decisive action, which many see as conflicting with the comprehensive environmental review and balanced judgments that these conditions require for long-run success.

Who is to conduct this balancing and with what public participation? Can the narrow confines of a toothless "environmental justice" program capture and redress the extraordinary racial and class inequities that were revealed and then exacerbated by Katrina? Should the levees be rebuilt only to fail again if they continue to accelerate the disappearance of offshore barrier islands? Can freshwater supplies, sewage treatment facilities and other infrastructure ever be restored at a scale adequate for a city of one million people?

And what is the role of law, and courts and lawyers generally, in addressing these issues, both procedurally and substantively? Is our nation's experience with conventional environmental disputes or impact statements relevant? Does New York's Sept. 11 environmental recovery provide any useful guidance for the nation's Katrina recovery?

We believe that lawyers, including environmental lawyers, have a critical role to play in shaping the Katrina recovery efforts and in creating balanced procedures that permit prompt action by responsible agencies, while protecting the nation's long-term interest in both environmental protection and the public support that is essential to a successful recovery program.

New Orleans for Whom?

Beyond the obvious need to make New Orleans habitable and to provide for the sustenance of evacuees, the threshold task in planning for New Orleans' recovery must be to define the size and kind of city to be restored. Even for environmentalists, this means more than decontaminating flooded neighborhoods, providing safe drinking water and identifying a place to dispose of the massive amounts of debris left behind by Katrina. We have previously warned (New York Law Journal, April 21, 2005, at p. 3) against "environmental segmentation," the tendency to isolate the physical environment from a community's commitment to fundamental rights for all of its members — the social environment that is a prerequisite for public support of protecting the natural environment. The rebuilding of New Orleans must therefore start with a clear understanding that the goal of that rebuilding is to recreate a city for all of its former residents or, if that is not feasible, for at least the same cross-section of residents. In the language of environmental justice, the adverse impacts of Katrina, so disproportionately affecting minority groups and the poor, must now be mitigated through a broad governmental and societal commitment to recreate an urban environment that is not simply economically viable, but also serves the diverse population that previously made New Orleans its home.

Complying With Law

Immediately following the Sept. 11, 2001 attack on the World Trade Center, Governor George Pataki issued an executive order suspending most New York laws for 30 days (with certain limited extensions) in order to respond to emergency conditions. Thereafter, however, both New York and federal officials and agencies were required to carry out their respective recovery and rebuilding programs in accordance with applicable law (including, in several cases, existing statutory authority to expedite decisions under specific emergency conditions). Although some of the substantive decisions or policy choices made by state and federal agencies in the Sept. 11 recovery have been criticized by one or more groups affected by the World Trade Center's destruction, the paucity of litigation challenging those decisions reflects the highly visible efforts of both federal and state agencies to carry out their rebuilding plans in accordance with environmental and historic preservation laws and with unprecedented public input.

There has been considerable debate over the feasibility of such careful adherence to law in the wake of Katrina, and legislation has been proposed by the Bush administration and others to exempt the New Orleans and Gulf Coast recovery efforts from the National Environmental Policy Act (NEPA) and other major federal and state environmental laws, including the Clean Water Act, the Clean Air Act and superfund laws. The environmental community has resisted this effort, and the New York City Bar Association has rightly pointed out, in commenting on Senate bill S. 1711, both that existing legislation already contains entirely adequate emergency exemptions and that the pending administration proposals could apply to federal decisions made anytime in the next 18 months virtually anywhere in the country so long as they somehow relate to the Katrina recovery.

There is no reason, we believe, why the Katrina recovery cannot comply with law. It is essential, in view of the intended long-term consequences of that recovery, that a meaningful overall assessment of recovery proposals be undertaken in the form of an environmental impact statement (EIS) under NEPA. In view of the broad range of environmental issues involved in any plans to rebuild New Orleans, such an EIS should almost certainly be a "generic" or "programmatic" EIS that addresses the major impacts of alternative redevelopment schemes for the city, leaving ample room for the inevitable individual project variations and adjustments as redevelopment proceeds.

If at all possible, this generic EIS should be prepared by a single federal "lead agency," with all other federal, state and local agencies serving as "cooperating agencies" under NEPA. That analysis should, if feasible, include any required air quality, water quality, coastal and flood zone, historic preservation, hazardous materials or other studies required to support required findings or approvals under the Clean Air Act, the Clean Water Act, the National Historic Preservation Act (NHPA), RCRA, CERCLA and the authorizing statutes of each of the individual agencies. The goal should be a single source of environmental data and analysis sufficient for all required permits and approvals related to the overall redevelopment process, avoiding the need for multiple iterations of similar EISs (with likely inconsistent premises or findings), multiple hearings and multiple opportunities for litigation.

Such a generic EIS, while imperfect, offers the best vehicle to carry out New Orleans' redevelopment in accordance with applicable law, while encouraging coordinated, systematic long-term environmental analyses and planning by all involved agencies. The EIS would also afford residents an opportunity, through the EIS hearing and comment process, to participate in that process in a way that focuses public discussion more effectively and more meaningfully than either disparate public hearings on individual proposals or, worse, "emergency" administrative fiats made without any public participation at all.

Choosing a Lead Agency

The lead agency for the EIS under NEPA should, of course, be the federal agency most responsible for planning and implementing New Orleans' redevelopment. Which agency should have that role? This question is made more difficult by the extraordinary failure of FEMA to perform its emergency management function before, during and after Katrina, by the numerous high-level vacancies at the Department of Housing and Urban Development (HUD) and by the Bush administration's overall hostility to federal government programs intended to meet social or urban needs. The problem is also compounded by the apparent ineptitude of many relevant state and city agencies, as well as the absence of an effective statewide planning and development agency, akin to New York's Empire State Development Corp. (ESDC), with planning and implementation powers, condemnation authority, the ability to override local zoning and building code requirements and the capacity to serve as a "recipient" of HUD redevelopment funds and then assume "federal" lead agency status under NEPA and NHPA.

Unless Louisiana opts to establish a comparable development agency, Congress might consider establishing a special-purpose redevelopment authority (similar to the Tennessee Valley Authority) for the Gulf Coast, with authority to undertake recovery and redevelopment projects in cooperation with relevant state or municipal agencies, to utilize HUD and other federal grant funds for this purpose, to serve as lead agency for the redevelopment EIS and, possibly, to issue its own notes and bonds for specific redevelopment projects.

Alternatively, the states of Louisiana and Mississippi could consider establishing, with congressional approval, an interstate compact agency similar to the Port Authority of New York and New Jersey, which owns the World Trade Center site and has partnered with the Lower Manhattan Development Corp. (an ESDC subsidiary) in its redevelopment. However, it is essential that the new redevelopment agency, whether federal, state or interstate, be subject to all federal and state environmental laws and have no claim to sovereign immunity in an effort to avoid judicial review of its compliance with such laws. It is also essential, in view of the extreme social dislocation caused by Katrina, that the redevelopment authority provide meaningful opportunities for participation in and comment on proposed redevelopment plans and that these plans be required to address explicitly environmental justice issues in preparing redevelopment plans.

Conclusion

Both New York's experience in planning for Lower Manhattan's recovery after Sept. 11 and the even more widespread environmental, social dislocation, planning and economic challenges of Hurricane Katrina point to a number of fundamental principles for a successful Katrina recovery:

  1. the Katrina recovery effort should be designed and implemented to rebuild New Orleans (and other Gulf Coast communities) for all former residents, particularly the hundreds of thousands of low-income and minority residents now scattered across the nation;
  2. existing environmental laws contain sufficient flexibility to address both short- and long-term recovery demands, and new "emergency" exemptions from these laws are not required;
  3. a comprehensive generic (or "programmatic") EIS under NEPA provides, particularly for the complex environmental conditions in and around New Orleans, the preferred vehicle to assess federal, state and municipal redevelopment plans, satisfy applicable legal requirements and provide an essential avenue for public participation in the planning process; and
  4.  an appropriate lead agency is essential both to carry out the EIS review and to coordinate (and, where necessary, undertake directly) the Katrina recovery and development plans in accordance with applicable state and federal environmental and other laws. Such an agency could be either a newly created Louisiana redevelopment authority, a congressionally chartered redevelopment authority or an interstate compact agency established by Louisiana and Mississippi to address regional Gulf Coast redevelopment.

Stephen L. Kass and Jean M. McCarroll, together with Clifford P. Case III, direct the environmental practice group at Carter Ledyard & Milburn LLP.


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