Why Rebuilding After Disasters Is Largely a Legal Challenge

Without addressing the complexities of local law, even the most resilient designs risk lingering on computer screens and drawing boards without implementation.

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AP

When we think about designing places to be more resilient, we tend to think of gritty interventions in the physical environment. But a successful resilience-focused project must also contend with another kind of environment: the legal one.

After a major natural disaster, the redevelopment process opens up what might seem like intractable legal issues, including property buy-outs, beach access, insurance policy, and cross-jurisdictional governance. As the Sandy-affected region rebuilds to better confront future storms, planners and designers need to develop systems for addressing legal infrastructure as much as the physical environment. Without doing this, designs risk lingering on computer screens and drawing boards without implementation.

Design in the physical environment involves adjusting to natural constraints and finding ways to work around them. The same can be said about the law. Any implementation proposal must take into account the legal structure that allocates decision-making power to federal, state, and local governments. All three levels of government have enacted rules that determine what can and cannot be done both along the coasts and in nearby areas subject to flooding.

This legal environment, like the natural environment, can either be accepted as the relevant context or worked around. But neither path is possible unless designers understand the legal context. Like environmental systems, law is site-specific, so regional strategies can’t be addressed in sweepingly generalized legal principles. Instead, considerations must be tailored to the particularities of locations and conditions.

Within the U.S., federal laws, which are likely to be the ones most familiar to the largest audience, do have governance over water-related construction. The U.S. Army Corps of Engineers plays a dominant role in storm recovery and damage prevention in the United States. This agency, which employs more than 37,000 people, will be a central actor in any proposal that affects the seashore. It's not just that the USACE has many projects of its own in the Sandy region. It also regulates any construction that affects "the navigable waters of the United States." It is a criminal offense, for example, to engage in dredging activities that affect the ocean without a permit issued by the USACE. This is only the beginning of the federal role, though. More than twenty federal agencies and White House offices are members of the Hurricane Sandy Rebuilding Task Force – including, for example, the Departments of Energy, Commerce, and Health and Human Services, as well the Environmental Protection Agency – and each of them is likely to be part of the process.

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Less familiar, I suspect, are state laws. In New York, for example, the New York State Department of Environmental Conservation requires permits for construction in coastal areas, and the New York Department of State must approve waterfront revitalization and buildings along the coast, while the New York State Department of Health is empowered to regulate flood mitigation efforts. The legal rules empowering these state agencies, like many federal rules, affect work done on the seashore, but could be different from other states, even those that are direct neighbors.

Then, within any state, there are patchworks of city and county laws with which designers must contend—and reconcile with existing state and federal regulations. Laws enacted by New York City will also affect any proposals that seek to deal with the resilience of existing buildings, to add requirements for new buildings, and to relocate utilities or other infrastructure (not to mention people) from the flood area as a whole. New York City regulates construction standards for new buildings, particularly within the 100-year floodplain, and New York State regulates their construction in the floodplain within neighboring jurisdictions. Moreover, any project undertaken by or requiring the approval of state or local government – whether on land or on the seashore – must prepare an environmental impact statement as required by both New York State (under the State Environmental Quality Review Act) and New York City (under New York City Environmental Quality Review). A proposed project could have negative impacts as well as positive ones.

These examples only hint at the complex regulatory structure involved in any effort to rebuild the Sandy region. But they should be enough to make clear that for design proposals—even ones that brilliantly tackle environmental challenges—to move from concept to implementation, we'll either need to work through the current regime of federal, state, and local laws, or work to modify those laws. The legal environment will determine whether implementation is even possible. And for the very real vulnerabilities that disasters like Sandy reveal, implementation must be the objective.

Top image: Marie Lopresti visits the site of her former house in Breezy Point, Thursday, Oct. 17, 2013 in the Queens borough of New York. A year ago on Oct. 29 Superstorm Sandy sparked a fire in the neighborhood burning Lopresti's home and more than 100 others. (AP Photo/Mark Lennihan)

About the Author

  • Gerald Frug is Louis D. Brandeis Professor of Law at Harvard Law School.