Disaster Law and Hurricane Harvey

This is the first in what will be a series of posts about disaster law.

As I write, Hurricane Harvey continues to hammer Texas, with rains and flooding expected to last for days. Because the storm is so slow moving, it may dump up to several feet of rain in some locations. For the same reason, it’s future trajectory is unclear, so we can’t even be sure of what areas will be most affected.

It is difficult to think past the immediate plight of the victims. But the reality is that we will be entering a prolonged process that will ultimately lead to a multi-year rebuilding effort. When we think of disasters, we picture rescuers pulling survivors out of wrecked buildings, not lawyers in suits. But law creates the framework for mitigating disaster risks and structuring emergency response, recovery, and rebuilding.

A dozen years ago, Hurricane Katrina highlighted serious gaps in the law’s capacity to anticipate and respond to catastrophic events. From the amplification of already-entrenched social injustices left uncorrected in court or by legislation, to the exhaustion and failure of compensation systems, to the paralysis on the ground resulting from ambiguous divisions of disaster management responsibilities among state and federal governments, Katrina and its aftermath made manifest the American legal system’s inability to cope effectively with catastrophic events.

The legal system plays a central role in disaster prevention, response, and management. But despite improvements since Katrina, the law continues to struggle to handle disasters. A growing community of legal scholars recognizes this problem and is formulating solutions under the rubric of disaster law.   This emerging legal academic field encompasses a wide-ranging, inter-disciplinary body of research seeking to inform and improve disaster-related decision-making.

The emergence of disaster law may be compared to the birth of environmental law in the later 1960s and early 1970s, when a small group of practitioners and professors recognized the dire need for a coordinated legal approach to sprawling and life-threatening problems.

One of the key insights of disaster law is the disaster cycle. In terms of Hurricane Harvey we’re still in the middle of the disaster event. We will be moving into later phases: the emergency response, compensation mechanisms, rebuilding, and risk mitigation. But this is a cycle, not a straight-line process. There will be more storms and more massive floods in the future. How Texas rebuilds from this storm will help determine how vulnerable it is to the next one.

I’ll be doing more posts and supplying links to resources dealing with the issues that we’ll see as the floods peak and recede, leaving the state with a massive recovery and rebuilding problem. In the meantime, I’m sure all our thoughts are with the people who are suffering the worst of the impacts in the continuing emergency.