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November 19, 2012

Environmental Law Reform Could Make Communities More Resilient to Natural Disasters

As the cleanup following Hurricane Sandy continues, a New Jersey Department of Environmental Protection official said the U.S. should consider re-examining environmental law as a critical piece of long-term recovery and as an opportunity to rebuild communities that are more resilient to natural disasters.

“We have an opportunity here to sit down with the local municipalities, local government officials, community residents, advocacy groups and the regulated community to see what is the vision that we want moving forward,” said John Gray, executive assistant at the New Jersey Department of Environmental Protection’s Office of the Commissioner. “I can say that this state has taken all these lessons learned and tried to build on these experiences so that we are more prepared for the next disaster around the corner.”

Gray commented during a discussion about how environmental laws apply following a disaster, and how these laws fail to consider environmental changes into planning for long-term redevelopment, during an _ Section of Environment, Energy and Resources teleconference on environmental law and Hurricane Sandy on Nov. 15.

According to Victor B. Flatt, Taft professor and director of the Center for Law, Environment, Adaptation and Resources at the University of North Carolina at Chapel Hill School of Law, current environmental laws do not recognize that “changing physical infrastructure is putting it in a location or protecting it in a manner that could anticipate larger, more difficult storms and storm surges.”

He added that environmental laws tend to encourage rebuilding in the same place and in the same way.

In response to Hurricane Sandy, New Jersey and New York environmental protective agencies have issued environmental legal exemptions — known as waiver enforcement requirements — to clean up and urgently restore critical services.

Environmentalists and advocacy groups have raised concerns about the environmental costs of granting waivers and loosening environmental standards. But legal experts and state agency representatives are equally worried that environmental laws do not allow for rebuilding and redeveloping sustainable infrastructure and preparing for future natural disasters. 

“The most important thing to take from this is that most of the environmental laws do not have statutory exemptions for the kind of emergencies that arise in disasters like Hurricane Sandy,” Flatt said. “There is a difference between how the environmental laws and waivers apply in a cleanup situation — that is the emergency response to cleanup — versus the longer-term rebuilding situation.”

In preparation for the future, Flatt suggested that the environmental costs of rebuilding and redeveloping after natural disasters could be lessened by changes in environmental law and regulations. Flatt cited the government’s review of National Flood Insurance Program rates, which revised the program’s premiums to assess and reflect the full risk of flood loss.

Legislators could also use existing laws more widely, such as the Coastal Zone Management Act, that encourage development that is more resilient to natural disasters. 

During the teleconference, other topics of discussion included the application of legal waivers and exemptions in areas affected by natural disasters, advice on how to obtain reimbursement from the Federal Emergency Management Agency, and pitfalls observed in previous responses to large-scale disasters.

Learn More About:  Environmental Law