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

44 Pages Posted: 8 Sep 2006  

Douglas A. Kysar

Yale University - Law School

Thomas Owen McGarity

University of Texas at Austin - School of Law

Abstract

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 a serious one. Parallels 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 disaster, also confound the attempt to predict through 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 we are planning a hurricane protection plan, or the equally mythical "lawsuit that sunk New Orleans" when we are attempting to allocate responsibility for the plan's failure some forty years later.

Keywords: environmental law, risk regulation, disaster, hurricane, cost-benefit analysis, precautionary principle, risk assessment, risk management

Suggested Citation

Kysar, Douglas A. and McGarity, Thomas Owen, Did NEPA Drown New Orleans? The Levees, the Blame Game, and the Hazards of Hindsight. Duke Law Journal - 36th Annual Administrative Law Symposium, Vol. 56, 2006; U of Texas Law, Public Law Research Paper No. 106; Cornell Legal Studies Research Paper No. 06-024. Available at SSRN: https://ssrn.com/abstract=928869

Douglas A. Kysar (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Thomas Owen McGarity

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1384 (Phone)

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