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Did NEPA Drown New Orleans? The Levees, The Blame Game, and the Hazards of Hindsight

2006; Duke University School of Law; Volume: 56; Issue: 1 Linguagem: Inglês

1939-9111

Douglas A. Kysar, Thomas O. McGarity,

Flood Risk Assessment and Management

This Article highlights the hazards of hindsight analysis of the causes of catastrophic events, focusing on theories of why the New Orleans levees failed during Hurricane Katrina in 2005 and particularly on the theory that the levee failures were “caused” by a 1977 National Environmental Policy Act (NEPA) lawsuit that resulted in a temporary injunction against the Army Corps of Engineers’ hurricane protection project for New Orleans. The Article provides a detailed historical reconstruction of the decision process that eventuated in the New Orleans storm surge protection system, focusing both on the political and legal factors involved and on the “standard project hurricane” risk assessment model that lay at the heart of the Army Corps of Engineers’ decisionmaking process. The Article then offers a detailed analysis of how and why Hurricane Katrina overcame the New Orleans levee system. As this analysis demonstrates, the argument that the NEPA lawsuit played a meaningful causal role in the Katrina disaster is not persuasive. Parallel lessons are then drawn for forward-looking disaster policy. The same problems of uncertainty and complexity that confound the attempt through hindsight to attribute causal responsibility for a Copyright © 2006 by Douglas A. Kysar and Thomas O. McGarity. † Professor of Law, Cornell Law School. †† Joe R. and Teresa Lozano Long Endowed Chair in Administrative Law, University of Texas at Austin School of Law. This Article has its origins in a report that the authors prepared in the immediate aftermath of Hurricane Katrina as member scholars of the Center for Progressive Reform. The authors gratefully acknowledge Ya-Wei Li, without whose research assistance the inner working of the standard project hurricane would have remained elusive. 05__KYSAR_MCGARITY FINAL.DOC 11/14/2006 8:38 AM 180 DUKE LAW JOURNAL [Vol. 56:179 disaster also confound the attempt to predict using foresight the variety of outcomes, including potentially disastrous ones, that may flow from policy choices. Focusing narrowly on any single parameter of complex natural and human systems is likely to dramatically distort environmental, health, and safety decisionmaking, whether the parameter is a “standard project hurricane” when planning a hurricane protection plan, or the equally mythical “lawsuit that sunk New Orleans” when attempting to allocate responsibility for the plan’s failure some forty years later.