Are We Ready for the Next Disaster?

Volume 20, Number 4, Spring 2006


Homeland Security After Hurricane Katrina: Where Do We Go from Here?
Hurricane Katrina not only destroyed huge areas of the Gulf Coast, but it also destroyed any false sense of security that we may have held about our level of preparedness to deal with a disaster on this order of magnitude. Katrina was the worst natural disaster in our nation’s history. Most tragically, more than 1,300 people died, and many are still missing. It destroyed more than three hundred thousand homes. While the exact financial toll remains uncertain, it is certain to exceed $100 billion.
Joe Whitley, Kipp Coddington, and George Koenig

Emergency Exemptions from Environmental Laws After Disasters
Many environmental statutes had their origins in disasters. And when disasters strike, the environmental laws come into play in the response. Some have urged Congress to adopt emergency exemptions so that the environmental laws do not interfere with rescue and recovery.
Michael B. Gerrard

Environmental Protection After a Disaster: A Right or a Privilege?
In the wake of disasters, both natural and otherwise, those affected look to their government for assistance and support. In addition to emergency response, rescue, and recovery efforts, citizens also expect their government to provide timely and accurate information on environmental impacts and related risks. We expect our government to ensure the environment is reasonably safe or, at the very least, to evaluate and minimize significant environmental risks, where possible, before residents and nonemergency workers are encouraged to return en masse.
Michael Davis, Ethan Strell, and Judith Wallace

Send in the Guard: The National Guard Response to Natural Disasters
For the past one hundred years, the National Guard of each of the states and territories has been at the vanguard of any response to a natural disaster. Composed of citizen-soldiers who serve their country on a parttime basis, the National Guard has been most governors’ first choice in responding to natural disasters, such as floods, snowstorms, tornadoes, earthquakes, and forest fires that overwhelm the ability of local responders. For “routine” natural disasters that can be handled wholly with in-state resources, most state’s National Guards have well-established procedures for mobilization, employment, and demobilization and are uniquely equipped and situated to augment traditional first responders when a natural disaster exceeds local capabilities. The image of National Guard troops engaged in post-disaster relief operations is familiar to most Americans.
James Stuhltrager

Insuring Against the Natural Catastrophe After Katrina
Amid the rubble-piled Mississippi Gulf Coast and breached levies of New Orleans, Hurricane Katrina’s victims are not debating global warming or unrelated climatic change. Rather, if they are property owners, they are debating wind versus flood, actual cash versus replacement cost value, and additional living expense. Their question is far more immediate: “Am I covered by insurance?” In the wake of the costliest natural disaster in U.S. history, it is an understandable inquiry.
Spencer M. Taylor

Katrina’s Tort Litigation: An Imperfect Storm
Tort suits? This was an act of nature, just furious and destructive nature, was it not? People should just pick themselves up by their bootstraps, perhaps with a helping hand from government and not go to court to point an accusing finger at others, should they not? The tort system is for something else, is it not?
John P. Manard, Jr., Patrick O’Hara, and Kelly R. Blackwood

New Orleans After Katrina: A Superfund Site?
Does it make sense to apply the CERCLA “procrustean bed” to the situation in New Orleans? Is there not an immediate and absolute act of God defense for the undoubted release of hazardous substances in the greater metropolitan area of New Orleans? This article addresses these two initial questions and also discusses why, as a practical matter, it might actually make sense to apply the CERCLA statutory framework to the cleanup in New Orleans.
Norman A. Dupont

Katrina’s Energy Agenda
As Hurricane Katrina ravaged the Gulf Coast in the country’s worst natural disaster, oil prices reached an historic high of $70.85 per barrel. Weeks earlier, President Bush signed into law the Energy Policy Act of 2005 (EPAct 2005), Public Law 109-58. These events put energy on the front page and above the fold for the first time in over a quarter century. The oil and gas price spikes and supply disruptions caused by the hurricane are short term and relatively easy to manage. On the other hand, rebuilding New Orleans and other affected areas is neither, nor is planning for our energy future. Katrina’s divine wind is a warning for the country not only about disaster response but also about planning for a healthy and productive energy economy. The energy consequences of Hurricane Katrina are immediate, mid term, and long term. EPAct 2005, in many ways reminiscent of President Carter’s two major energy initiatives, continues an energy policy that has dominated our energy thinking for over a century. Katrina presents an opportunity to reevaluate that traditional policy in light of changing demands. Katrina also suggests reasons for engaging in a transition to a new “smart” energy policy for a strong economic future.
Joseph P. Tomain

Emergency Response Planning: A Critical Investment
In 1991, Texaco Inc. engaged one of the authors of this article to represent the company after learning that its Star Enterprise Inc. tank farm in Fairfax, Virginia, allegedly released petroleum products into the ground, resulting in the contamination of the groundwater in the area. Migration of this contaminated plume resulted in the evacuation of several nearby homes due to the risk of explosion. Fortunately for Texaco, it had a current emergency response and crisis management plan. The plan was implemented quickly beginning with the engagement of environmental engineers to investigate, contain, and remediate the source of the release; and the formation of an inside-outside emergency response/crisis management team of business executives, lawyers, engineers, and media advisors. Implementation of the plan enabled Texaco to grapple effectively with defending itself against property damage, personal injury claims, a considerable hazardous substances cleanup effort, massive negative publicity, and a multiyear investigation by governmental authorities.
David B. Graham and Thomas D. Johns

Exposed Refineries, Price-Gouging, and the Gas Crisis That Never Was
On November 1, 1775, an estimated magnitude nine earthquake and massive tidal wave destroyed the Portuguese capital of Lisbon. Fires soon broke out in the few areas not devastated and raged for five days. Fortunately for the citizens of Lisbon, their able prime minister, Sebastiao de Melo, survived the disaster and quickly organized relief efforts. When asked what was to be done, Sebastiao laconically articulated his objectives, “Bury the dead and feed the living.” The first construction work was the erection of gallows on the city’s highpoints. The prompt execution of thirty-four looters quickly restored order. The fires were put out and thousands of bodies were collected and disposed of at sea. Disease did not break out, rubble was cleared, and reconstruction began. The first government response to a major disaster in the modern era was a resounding success.
Alastair Walling

Did NEPA Sink New Orleans?
Hurricane Katrina did not flood New Orleans; poorly constructed levees did. New Orleans survived Katrina relatively dry and free of damage. Then the levees broke, and one of America’s great cities sank below the floodwaters of Lake Pontchartrain. The aftermath has been marked by efforts to assign and avoid blame. It did not take long for fingers to be pointed at environmental requirements, principally the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370f.
Shawna M. Bligh

Postscript: Katrina’s Regulatory Aftermath
In the aftermath of the 2005 hurricane season, various local, state, and federal agencies mobilized to address the resulting emergency circumstances. The actions included state guidance on waste management, revised fuel additive regulations, and tax relief. The following is a brief summary of some of those regulatory actions. More details on hurricanes can be found in this issue on The Back Page.
Teresa B. Salamone

The Back Page
We use “The Back Page” to periodically provide our readers with additional useful information, including reader comments, updates to previous articles, and facts of interest related to an issue’s main theme. This issue’s “Back Page” is a compilation of facts and figures on recovery efforts after Hurricanes Katrina and Rita and some general facts about hurricanes.



View all Insights

Time for a New Look at “Windfalls for Wipeouts”?
Margaret H. Clune

The Songhua River Spill: China’s Pollution Crisis
Lisa A. Kirschner and Edward B. Grandy

The National Park Service Management Policies Controversy
Madeline June Kass

Coral Reef Damages and Cost Recovery: Seeking Practical Solutions
Arnold L. Lum

Electronic Discovery and the Environmental Litigator
Paula J. Schauwecker



Vantage Point


Literary Resources

The Back Page

Issue Editor:
Sheldon A. Zabel and Stephen Gidiere


Assistant Issue Editors:
Jeanine Feriancek, Lawrence P. Mellinger, and Gregory R. Signer


Special Contributing Editor:
Teresa B. Salamone


Cover illustration:
Kelly Book


Department art:
Mike Callaway

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Natural Resources & Environment (ISSN: 0882-3812) is published quarterly as a service to its members by the Section of Environment, Energy, and Resources of the American Bar Association, 321 North Clark Street, Chicago, Illinois 60654. Periodicals postage paid at Chicago, Illinois, and additional mailing offices. Any member of the ABA may join the Section by paying its annual dues of $50. Subscriptions are available to nonlawyers for $60 a year ($65 for foreign subscribers). Back issues published two years ago and earlier may be purchased from William S. Hein & Co., Inc., 1285 Main St., Buffalo, New York 14209. More current issues may be obtained for $15 plus a $3.95 handling charge from the ABA Service Center, American Bar Association, 321 North Clark Street, Chicago, Illinois 60654. Requests to reprint articles should be sent to ABA Copyrights & Contracts; all other correspondence and manuscripts should be sent to the NR&E Managing Editor at the address above. For more information, visit The opinions in Natural Resources & Environment are those of the authors and shall not be construed to represent the policies of the American Bar Association; the Section of Environment, Energy, and Resources; or the employers of the authors. POSTMASTER: Send all changes of address to Natural Resources & Environment, 321 North Clark Street, Chicago, Illinois 60654. Copyright © 2006 American Bar Association.

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