In the nearly fifteen years after Hurricane Katrina, hurricane victims' efforts to recover for the Army Corps of Engineers' construction and maintenance of New Orleans's faulty levee systems have slowly wended their way through the courts. After the Federal Circuit held in St. Bernard Parish Government v. United States that the Army Corps of Engineers' construction and maintenance did not constitute a taking, hurricane victims' efforts to recover in the courts hit a dead end. Using Hurricane Katrina and its aftermath as a lens to examine mechanisms to compensate victims and deter future losses, this Note ultimately concludes that the existing methods of recovery after natural disasters, primarily tort and the National Flood Insurance Program, fall short. As climate change increases the threat of catastrophic flooding caused by hurricanes and rising seas, a new mechanism to compensate victims and deter future flood losses is needed. This Note uses takings, a theory rejected by the Federal Circuit in St. Bernard Parish, as a potential mechanism to facilitate retreat from vulnerable areas by buying back flood-prone properties. However, any federal buyback program must grapple with the problematic history of using eminent domain to forcibly displace poor and minority communities. This Note proposes a program to incorporate community input at an early stage in order to keep valuable community ties intact.
Sinclair, K
Water, Water Everywhere, Communities on the Brink: Retreat as a Climate Change Adaptation Strategy in the Face of Floods, Hurricanes, and Rising Seas
Ecology Law Quarterly