Pidot, Justin, Brigham Young University Law Review
Over time, we have grown increasingly vulnerable to natural disasters. Each decade, economic losses from such disasters more than double as people continue to build homes, businesses, and other physical infrastructure in hazardous places. Yet public policy has thus far failed to address the unique problems posed by natural disasters. This Article takes a first step toward improving public policy by offering a paradigm for understanding its failures, suggesting that three categories of obstacles obstruct sensible government regulation.
Drawing from philosophy, cognitive psychology, history, anthropology, and political science, this Article identifies and analyzes three categories of obstacles to disaster policy-symbolic obstacles, cognitive obstacles, and structural obstacles. The way we talk about natural disaster, the way we think about the risks of building in hazardous places, and structural aspects of American political institutions all favor development over restraint. Indeed, these forces have such strength that in most circumstances society automatically and thoughtlessly responds to natural disasters by beginning to rebuild as soon as a disaster has occurred.
The types of obstacles discussed in this Article interact and amplify one another, further impeding policymaking. The history of disaster policy suggests that efforts to respond to any one obstacle will likely fail. Only by understanding these obstacles collectively, and by coordinating responses to their individual and cumulative effects, can America effectively tackle the natural disaster problems it faces.
I. INTRODUCTION 214
II. SYMBOLIC OBSTACLES 224
III. COGNITIVE OBSTACLES 235
IV. STRUCTURAL OBSTACLES 243
V. CONCLUSION 254
On October 29, 2012, Superstorm Sandy swept through the northeastern United States. Coastal communities experienced a record-setting storm surge that reached more than thirteen feet.1 Waves topped thirty feet outside of New York Harbor and grew to almost forty feet in Atlantic City, New Jersey.2 In all, parts of seven states received more than five inches of rain during the storm's course.3 This rare event swept through many of the same areas devastated only the year before by Hurricane Irene,4 causing New York Governor Andrew Cuomo to quip "we have a 100-year flood every two years now."5
Natural disasters are a recurring feature of the American experience. In 2011 there were ninety-nine federally declared, major natural disasters in the United States.6 They came in all shapes and sizes: wildfires, floods, blizzards, hurricanes, and earthquakes.7 Hurricane Irene is a good example, tearing through New England at the end of August 201 1. In the wake of the storm, streams and rivers flooded, destroying homes, businesses, and roads, and causing over $15 billion in damage.8 Hurricane Irene, like the other ninety-eight major disasters of 20 ll,9 was a tragedy for many people. Like most natural events that result in massive economic loss, the storm was also a predictable, albeit rare, event. Much of the flooding that swept away memories and livelihoods occurred in areas predicted to flood, on average, once every hundred years.10 But, as Governor Cuomo recognized, such floods sometimes strike in rapid succession.11
These events are referred to as "natural" disasters because they are precipitated by natural forces. But the behavior of humans - where we locate and how we build our homes, businesses, and roads - plays a leading role in transforming events into disasters.12 Hurricane Irene's rain may have caused rivers and streams to overtop their banks, but a flood only becomes a disaster if human infrastructure lies in its path.13 Indeed, the armoring of rivers, hardening of floodplains, and development of watersheds increases the severity of the flood itself. In a very real sense, the strength of Hurricane Irene, at least as people experienced it, was the result of policies that facilitated and permitted development in floodplains. …