Table of Contents
Page
I.Disasters Are the Rule, Not the Exception
II.Responding to Disasters
A.Broad Emergency Powers Affect Private Property
1.Statutory Provisions......
2.Tort Immunity for Actions......
3.Eminent Domain and Inverse Condemnation in Emergencies......
B.Occupying or Demolishing Buildings
1.Standards for Limiting Occupancy......
2.Demolishing or Renovating Historic Buildings......
C.Housing Refugees
1.Federal and State Authority and Actions......
2.Conflict with Local Zoning......
D.Rebuilding Non-Conforming Uses
E.Environmental Issues
1.Superfund Sites......
2.Human Health Risks......
3.Liability for Oil Spills......
4.Solid and Hazardous Waste Disposal......
5.Mold Issues......
6.Water Pollution Issues......
7.Air Pollution Issues......
III.(Re)Construction on Dangerous Ground
A.Floods, Storm Surges and Tsunamis
1.National Flood Insurance Program......
2.“No Adverse Impact” Flood Plain Management......
3.Constitutional Issues......
4.Reconstruction After Katrina and Rita......
5.Reconstruction in Missouri After the 1993 Floods......
6.Pacific Coast Tsunamis......
B.Earthquake Country
1.Seismic Design and Building Standards......
2.Zoning......
C.Wildfires
1
DOCSSFO-12427497.2
Katrina, Rita and More:
Can Land Use and Environmental Laws Help in Recovering from Disasters
and Preparing for The Next Big One?
Timothy N. Brown[1]
Spring 2006
“Where can you live in the United States where you are safe from natural disasters? If a tsunami hit, would they fix homes on the beaches? You are damn right they would. Why are we any different?”[2]
I.Disasters Are the Rule, Not the Exception
The death, devastation and misery wrought by Hurricane Katrina, the memory of September 11, 2001 and the April 18 centennial of the 1906 San Francisco Earthquake remind us of the terrible effects of catastrophic disasters in the United States. Whether caused by earthquake, tornado, fire, flood or hurricane, natural disasters are frequent in our country, and the same type of disaster often recurs in the same place, as the many hurricanes in recent years remind us.
The frequency of disasters can be tracked through Federal Disaster Declarations; the Federal Emergency Management Agency’s web site lists declared disasters by calendar year from 1953 to the present.[3] During 2005, major disaster declarations affecting six states were issued for Hurricanes Dennis, Katrina, Ophelia, Rita and Wilma, as well twenty-eight declarations for severe storms and flooding, three for tornados, four for severe winter storms and two for Pacific typhoons affecting Pacific Ocean island territories. Similar numbers of declarations were issued in previous years.
The cost in lives, injuries and property damage from the largest of these disasters was well-covered by the media. Katrina, with its thirty-foot storm surge, fifty-five foot high waves and 127 mile-per-hour winds at landfall in Louisiana, and the failure of levees in and around New Orleans, left over 1,300 persons dead in Florida, Louisiana and Mississippi, and estimated property damage of over $75 billion.[4] Nearly 100,000 homes in New Orleans were flooded or damaged. One source estimated that as many as 43,000 homes in Orleans Parish and three neighboring parishes may need to be demolished.[5]
Before Katrina, the most damaging ”flood event” in U.S. history was the Great Midwest Flood of 1993. During a several-month period in 1993, floods inundated the upper Mississippi River basin[6] and the Missouri River basin. Floods submerged ancient flood plains in ten states, and significant flooding of both the Mississippi and Missouri Rivers occurred around St. Louis. The volume of water involved in the floods and the duration of the floods were unprecedented. Approximately 10,000 homes were destroyed and another 16,000 were damaged, seventy-five towns were completely flooded, over 15 million acres of farm land were flooded and fifty persons were killed. Damages approached $15 billion.[7]
Major fires have been a continuing problem in the arid western states. The California wildfires of 2003 burned over 750,000 acres, caused 24 deaths and 217 injuries, and destroyed over 15,000 structures, including 3,600 homes, causing over $1.7 billion.[8] The 1991 Oakland Hills fires in northern California claimed 25 lives, destroyed 3,200 homes and caused about $1.7 billion in damage.[9] Fires in Oklahoma and Texas in late 2005 and early 2006 remind us that many states are affected by fires.
The risk of earthquakes along the Pacific Coast of the United States is well known and demonstrated by recent history. The 1994 Northridge Earthquake in the Los Angeles area, with a magnitude of 6.8 on the Richter scale, and the 7.0 1989 Loma Prieta Earthquake in the San Francisco area, each killed dozens of persons, injured thousands, and caused billions of dollars in property damage.[10] The magnitude of the great 1906 SanFrancisco Earthquake is estimated at 7.7 to 7.9, or as much as ten times the severity of the 1989 and 1994 earthquakes. The risk of earthquakes is not limited to the Pacific Coast. The strongest earthquakes in the continental United States during the past two centuries were the three magnitude 8 earthquakes centered on the New Madrid, Missouri fault system in late 1811 and early 1812.[11] Those earthquakes have been estimated to have caused damage in an area of 600,000 square kilometers.[12] Undersea earthquakes are a threat because they can cause deadly tsunamis, as demonstrated by the great tsunami in the Indian Ocean on December 26, 2004. A magnitude 9.2 undersea earthquake in 1964 near Anchorage, Alaska, caused a tsunami felt across the Pacific Ocean that killed 103 persons in Alaska and sixteen persons in California and Oregon.[13]
This paper discusses how the land use and environmental laws of the states and the federal government assist in responding to disasters, and how they can mitigate the effect of future disasters. The next section, on responding to disasters, discusses how governmental emergency powers can affect private property, limitations on occupying or demolishing buildings after a disaster, housing refugees, and environmental law issues. The third section discusses how the effects of disasters can be mitigated by building code and zoning ordinances.
II.Responding to Disasters
A.Broad Emergency Powers Affect Private Property
1.Statutory Provisions
Federal Statutes. Responding to disasters is largely the responsibility of the states. Federal statutes give the President broad powers during time of war, but the usual role of the federal government has been to assist the states in responding to disasters. The Robert T. Stafford Disaster Relief and Emergency Assistance Act (the “Stafford Act”) authorizes federal assistance to state and local governments after disasters; Congress intended that the federal government provide assistance and not take primary responsibility.[14]
Use of the U. S. military in responding to disasters generally is restricted by federal statute,[15] although there are limited exceptions. For example, the Insurrection Act,[16] which allows the President to call forth the military during an insurrection or civil disturbance, was used during the 1992 Los Angeles riots and in 1989 after Hurricane Hugo to respond to widespread looting in St. Croix, Virgin Islands.[17] Although the Insurrection Act may be invoked without request or permission from the governor of the state in which the disturbance is occurring, that has been rare.[18] Department of Defense (“DoD”) regulations set forth another limited exception under DoD Directive Military Assistance for Civil Disturbances (“MACDIS”),[19] which allows military forces to respond to emergencies even in the absence of Presidential authority. MACDIS is very narrow, however, and the DoD is directed not to “perform any function of civil government unless absolutely necessaryon a temporary basis under conditions of Immediate Response.”[20] Although the "Immediate Response" authority has rarely been invoked, it was used was after the 1906 San Francisco earthquake and fire, when troops were deployed to fight fires, prevent looting, restore order and protect the federal post office and U.S. Mint.[21] In addition, after a disaster that may qualify for assistance under the Major Disaster Assistance Programs of the Stafford Act, a governor may request the President to utilize the resources of the DoD to perform emergency work, such as debris removal.[22]
State Statutes. Because of the narrow constraints within which the federal government may respond to natural disasters and emergencies, emergency response is primarily a state function, unless the state asks for federal assistance. Accordingly, statutes in most states give broad emergency powers to their governors. For example, the Louisiana Homeland Security and Emergency Assistance and Disaster Act gives the governor the power to issue orders and regulations with the force of law to meet the state’s needs after a disaster. In addition, the governor may suspend statutes regarding the conduct of state business or the regulations of any state agency, reorganize state government, commandeer or use private property (subject to just compensation), order evacuations, and make provision for temporary housing. (The statute is attached as Exhibit A.)[23] Other state statutes grant similar powers;[24] the wording of the equivalent Michigan statute is very similar to that of the Louisiana statute.[25].
The California Emergency Services Act[26] gives similar powers to the governor, who can issue orders and regulations after proclaiming an emergency without following statutory procedures regarding administrative rulemaking, can take actions to mitigate effects of emergencies, can suspend regulatory statutes and regulations,[27] can declare martial law, and can exercise authority over all state agencies and all police power. It is a misdemeanor to violate the provisions of the Emergency Services Act and orders issued thereunder. “Emergency” is defined to include earthquakes, fires and floods, but does not include hazardous conditions that do not pose an immediate and imminent threat.[28]
2.Tort Immunity for Actions
Federal Immunity Statutes. Two federal statutes provide defenses for claims against the United States and its employees for tort actions. First, the Stafford Act provides that the United States is not liable for a claim “based upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty” by a federal agency or employee “in carrying out the provisions of [the Stafford Act].”[29]
The Federal Tort Claims Act also includes a defense based on discretionary actions. The Act provides that actions may be brought against the United States “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government all acting within the scope of this office or employment,” if the United States “would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”[30] Section 1346(b) provides some defenses, including claims based on acts of an employee of the Government exercising due care in executing a statute or regulation, or based on the performance of a discretionary function or duty.[31] Also, because tort liability of the United States for actions of its employees is based on the substantive law of the state where the action occurred, defenses available under the law of that state for private individuals also are available to the federal government. In addition, a “sudden emergency” doctrine has sometimes been used successfully to defend against actions under the Federal Tort Claims Act, where the claimant’s loss occurred while employees of the Government were responding to an immediate emergency.[32]
State Immunity Statutes. The state emergency statutes reviewed for this paper generally accord the state immunity from tort liability for emergency actions, as part of sovereign immunity. California grants immunity to the state and its agencies and political subdivisions and their respective employees for discretionary actions, including immunity for extraterritorial actions,[33] and for volunteers.[34] The immunity statutes were applied to defeat claims in reported California appellate decisions involving breaching a levee during a flood, which then flooded plaintiff’s property,[35] personal injuries suffered during a disaster training exercise[36] and damages to automobiles from pesticide spraying during an agricultural emergency.[37] However, one decision held that the state had potential liability for allegedly-intentional misrepresentations connected to a pest eradication program.[38] Similar statutory immunities for actions taken under emergency powers have been enacted in Louisiana[39] and Michigan.[40] In New Jersey, protection comes from the traditional sovereign immunity doctrine[41] and from a statute providing immunity for public entities and employees distributing drugs and vaccines to mitigate nuclear, chemical or biological agents caused by an act of terrorism or arising out of a state or emergency.[42]
3.Eminent Domain and Inverse Condemnation in Emergencies
Authority to Act. Typical state emergency statutes give the governor and his or her delegates the power to seize property in an emergency without following the usual eminent domain procedures, subject to constitutional just compensation requirements.[43] California’s governor may “commandeer or utilize any private property or personnel.”[44] These statutes typically require that claims for compensation be presented in accordance with the usual provisions for such claims against the state.[45] Missouri’s governor may seize “[a]ny means of transportation, . . . [a]ny communication system; . . .[a]ll stocks of fuel; [and] [f]acilities for housing, feeding and hospitalization of persons;” may “[c]ontrol, restrict and regulate by rationing, . . .commodities, materials, goods or services;” may “[p]rescribe and direct” the use of “materials, services and facilities, . . . including the use of existing and private facilities, . . .” and may “use or distribute all or any of this property among the inhabitants of the state in any area adversely affected by a natural or man-made disaster . . . .”[46]
California and Missouri have interesting limitations on their governor’s power. California’s governor may not seize “any newspaper, newspaper wire service, or radio or television station”[47] and Missouri’s governor may not seize “railroads and railroad equipment and fuel . . . .”[48]
Right to Compensation. Emergency action may damage or destroy private property. One of the most notorious examples was the U.S. Army’s demolition by dynamite of several square blocks of San Francisco in its effort to create a fire break to stop the raging fires that followed the 1906 earthquake.[49] Some state statutes provide that no compensation is payable for such a valid exercise of the police power. The New Jersey statute provides:
“Nothing in this act shall be construed to deny to any person who has an interest in any property which has been possessed by the municipality the right to obtain therefor just compensation to the extent that such property shall have been taken by the municipality. No compensation shall be granted to any individual to the extent that the action of the municipality does not amount to a taking of property but to a reasonable regulation of property pursuant to a proper exercise of the police power.”[50]
The Louisiana statute authorizing the governor to take emergency actions provides that the governor may “commandeer or utilize any private property,” but the action is “[s]ubject to any applicable requirements for compensation . . . .”[51] The Louisiana Constitution provides that property may not be taken or damaged by the state except for public purposes and with just compensation paid to the property owner.[52] Under Louisiana law, “taking” refers to acquisition of ownership and damage by state action that causes diminution in value of the property. In addition to answering the public purpose question, the court must determine if “a recognized species of property right has been affected; . . .”[53] This important test reflects statutory limitations on an owner’s rights to use, enjoy and dispose of property.[54]
California courts recognize an “emergency” exception to the requirement for just compensation when state action damages or destroys private property, if the damage was inflicted to avert “impending peril.”[55] For example, a recent intermediate appellate court decision held that breaching flood control levees during a flood, flooding private property to protect other property, fell within the “emergency exception” to the constitutional requirement of just compensation.[56] The decisions agree that the exception must be applied narrowly; as one court aptly put it, the emergency exception “cannot extend beyond the necessities of the case and be made a cloak to destroy constitutional rights as to the inviolateness of private property."[57] Legitimate and exempt acts taken under the emergency exception have been described as acts such as “the demolition of all or parts of buildings to prevent the spread of conflagration, or the destruction of diseased animals, of rotten fruit, or infected trees where life or health is jeopardized.”[58] Other decisions have refused to apply the emergency exception to less compelling circumstances.[59]
The declaration of a state of emergency by a governor or local official will not automatically shield a public entity from liability for negligent work or for failing to act despite knowledge of a danger. The California Supreme Court held that a public entity could not invoke the emergency exception to escape liability when it replaced flood control works with levees built in a negligent manner, causing flooding and damage to private property.[60] And a California appellate court held that a county could not escape liability under the emergency exception for damage it caused by breaching a levee, even though the county declared a state of emergency and it was undisputed that an emergency existed. The need for the emergency action was triggered by an inadequate levee, known to the county for almost six years. Because of recent heavy flooding, however, the inadequate levee posed a real emergency at the time the county declared the emergency. Although reluctant to second guess the decision of a public entity, the court reasoned that the emergency exception should not shield the public entity where it had prior knowledge of the flood threat and failed to act.[61]
B.Occupying or Demolishing Buildings
1.Standards for Limiting Occupancy
The first question usually asked by residents and businesses affected by a disaster is when they can reoccupy their homes, offices, stores and other buildings. Most local governments have implemented a building inspection system using color coding to indicate whether buildings may be reoccupied. A building designated green is safe to enter; a building designated yellow may have partial structural damage or non-structural hazards, and may or may not be habitable; and a building designated red is unsafe to enter and may not be occupied. However, “red tagging” does not necessarily mean “to be torn down,” because it may be possible to repair and reuse the building.