Low-Income Populations: Underrepresented Socially, Overrepresented as Victims of Natural Disasters

These repeating stories of disparity in community recovery are troubling to attorneys everywhere and of special concern to the American Bar Association (ABA). The ABA in 2017 adopted Resolution 108 to encourage communities “to adopt standards, guidance, best practices, regulatory systems, and programs that will make communities more resilient to loss and damage from foreseeable hazards and enhance the disaster resilience of communities.” The ABA’s Task Force on Resilience and Disaster Risk Reduction is charged with implementing this resolution. The Task Force carries out programming to support lawyers in cities across the country who are working to facilitate faster, more efficient, and more equitable recovery from disaster. For example, the Task Force arranged a panel presentation at the October 2018 Fall Meeting of the State & Local Government Law Section, “Low Income Populations: Underrepresented Socially, Overrepresented as Victims of Natural Disasters: Using the Law to Solve a Serious Problem.” The panel included moderator Edward Thomas, president of the Natural Hazard Mitigation Association (NHMA); John Marshall, associate professor at Georgia State University College of Law; Jo Ann Howard, president and founder of H2O Partners Inc.; Erin Capps, project director at Atkins North America Inc.; and Chhunny Chhean, chief of community prosecution with the City of Dallas, Texas.

Howard opened the panel with a story of a single mother raising three children who were impacted by Hurricane Harvey. Immediate impacts of flooding in cities include loss of life, property damage, economic loss, displacement, higher housing costs, and employment setbacks. Chronic impacts include exposure to stormwater contaminants, stress and associated health-related effects, loss of public/private property, and reduction of economic value of homes. The elderly, children, and those struggling to make ends meet are first affected, yet their voices are the least likely to be heard. The economic resources of vulnerable residents do not enable them to remove themselves from the danger of future events. Howard discussed the importance of volunteer organizations and nongovernmental organizations such as VOADs (National Voluntary Organizations Active in Disaster) and how resources of these nonprofits can be leveraged to assist a community following a disaster. The panel also discussed the role of Legal Aid post-disaster. In addition to the major steps that occur after a disaster, longer term issues must be considered such as access to school for children and transportation to work for parents.

Capps continued the discussion on resiliency and the use of volunteer organizations with a definition by Judge Ed Emmett of Harris County, Texas, after Hurricane Harvey: (2P + 2R) (PPR) = Resilience. This formula for true resilience is 2 Ps (Prevention and Preparation) plus 2 Rs (Response and Recovery) multiplied by PPR (Policies, Priorities, and Resources). In particular, Capps focused on policies, priorities, and resources to have in place prior to a disaster. One facet is the need to coordinate volunteer resources. Communities often are overwhelmed with donations of both labor and supplies. It is important to coordinate efforts for storage or other concerns, and volunteer resources and materials can be used to help communities meet matching funds on FEMA grants. Tracking volunteer time and resources can be extremely difficult and either is documented by multiple people without centralized reporting or not logged at all, which leads to potentially wasted resources or a de-obligation of funding. A best practice for communities is to set up a long-term recovery committee to establish policies and priorities and to manage resources. This does not have to be someone who is already performing multiple duties within the community but can be funded through grant programs and staffed post-disaster, with the sole responsibility of ensuring all resources are not only prioritized for vulnerable populations but also tracked and reported in an efficient manner.

In addition to the formula for resiliency described by Capps, it can also be defined as a way for communities to “bounce forward” following a disaster.¹ Two important considerations for any local government include: (1) appreciating the fundamental influence that law—statutes, ordinance, policies, and plans—have on the trajectory of a community’s recovery from disaster; and (2) steps that can be taken to amend or adopt new law before disaster strikes. Marshall, a land use attorney with the Holland & Knight LLP Tampa office and then with the New Orleans Redevelopment Authority, now on the faculty at Georgia State College of Law, has seen firsthand how inapposite local and state laws can delay a city’s recovery from disaster.

State and local laws figure centrally in determining whether and how local governments rebound from crisis and disaster. Laws concerning eminent domain, code enforcement, zoning, land use planning, and procurement play critical roles in dictating the pace of community recovery. Recent experience teaches that some of these statutes and ordinances have tended to slow recovery, delaying assistance to the low- and moderate-income families who need it most.

Marshall explained that there are a range of state and local laws that authorize valuable tools for carrying out long-term recovery. Buyouts, relocation, housing plans, and debris management plans are examples of laws and policies that not only promote more efficient recovery but also ensure that local governments have the resources and programming to help a community’s most vulnerable families.

Marshall’s presentation closed with a quotation from Ed Thomas that “[t]oo many communities have fallen into the trap of approving developments that look good in the short term, but in the long term cause misery, loss of lives and property, environmental despoliation, and likely cost that city a lot of money.” To move forward, one step that communities might consider is to create a city-specific disaster scenario and an audit of a city’s land development code to identify potential law and policy shortcomings that could frustrate effective and equitable recovery.

One city moving forward in this direction is Dallas, Texas. Chhean discussed how the Dallas City Attorney’s Office uses a variety of legal tools and nonlegal strategies to bring properties into compliance with all city codes, such as land use, floodplain, stormwater, building, and property codes. The City Attorney’s Office has developed “community prosecution” with a focus on working in low-income areas to ensure that structures are in the best condition to withstand future disasters.

Chhean leads a section of the City Attorney’s Office called Community Prosecution. Community prosecutors are embedded in neighborhoods throughout the city and conduct engagement and enforcement, primarily through civil litigation seeking injunctive relief. Community prosecutors engage in thoughtful enforcement of the City Code, including the disaster-related provisions, especially when it comes to low-income populations, who are vulnerable to both disasters (e.g., by living in substandard structures) and a lack of affordable housing.

Chhean also discussed that in Dallas and the North Texas region generally, not only flooding, which was discussed at length, but also extreme heat is a common disaster. Community prosecutors conduct strategic enforcement of environmental local laws, including tree preservation laws, to combat that latter issue.

Questions from the group included a discussion on how the National Flood Insurance Program is changing and how local communities can effect change for land use.

A follow-up webinar on this topic is currently being scheduled by the ABA for 2019.

Endnote

1. See Island Press & Kresage Found., Bounce Forward: Urban Resilience in the Era of Climate Change (2015), https://islandpress.org/resources/KresgeBrochure-framing-doc.pdf.