an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The last few days of the media cycle have not been kind to New Orleans. Locals spent today complaining about the “60 Minutes” report last night that had the city turning into an island surrounded by the Gulf of Mexico in perhaps 80 years. The report did indeed have some problems. It tended to equate the coastal erosion problem with the breach of the levees, two different events. It passed over experts and a National Academy of Sciences report suggesting that the eroding coast could be restored to an extent. But it did highlight a point of view that citizens here thought would never turn up in a reasonable public debate – that the city ought not to be rebuilt, at least not on anything like the same scale.
Despite today’s criticism, the CBS reporter, Scott Pelley, did not back off. Somewhat ominously, he commented: “People in Louisiana are desperately hoping that the federal government is going to come up with billions of dollars to restore the city and protect for city," Pelley adds. "It's not at all clear at this point that that is going to happen.”
This illustrates a large gap in perceptions that seems to have opened up between New Orleans and Washington. Consider the contrast between the “60 Minutes” report and a front-page Sunday editorial by the local newspaper, the Times-Picayune. The paper laid down the law:
But we need the federal government -- we need our Congress -- to fulfill the promises made to us in the past. We need to be safe. We need to be able to go about our business feeding and fueling the rest of the nation. We need better protection next hurricane season than we had this year. Going forward, we need protection from the fiercest storms, the Category 5 storms that are out there waiting to strike. Some voices in Washington are arguing against us. We were foolish, they say. We settled in a place that is lower than the sea. We should have expected to drown. As if choosing to live in one of the nation's great cities amounted to a death wish. As if living in San Francisco or Miami or Boston is any more logical. Great cities are made by their place and their people, their beauty and their risk. Water flows around and through most of them. And one of the greatest bodies of water in the land flows through this one: the Mississippi. The federal government decided long ago to try to tame the river and the swampy land spreading out from it. The country needed this waterlogged land of ours to prosper, so that the nation could prosper even more.
This editorial illustrates the primary sort of public justification for aid that has been used by the city since Katrina struck. We are economically useful, indeed essential, so helping us is in your interest. The problem is that this argument is not working. The port of New Orleans was hurt, but commerce seems to be flowing in a way that has not led to a crisis in Midwest agricultural exports. Oil and gas flow out of the Gulf, but it seems we do not need an entire city to maintain them. Local business people are making reasonable economic arguments when they visit Washington, but they are getting the brush-off. (Tuesday’s New York Times contains a similar story).
A story in today’s Washington Post reveals one source of the problem. There has been $18 billion spent so far, and it is becoming clearer that this is just a fraction of what will be required to truly rebuild the city. The story says: “It is yet to be determined, for instance, just how much of a role the federal government will play in picking up the tab. ‘It depends on a threshold question: What are you going to rebuild? What is the federal responsibility for rebuilding a city, a metropolitan area or a region? This is where it gets really confused,’ said Bruce Katz, director of the metropolitan policy program at the Brookings Institution. ‘Federalism is a messy business.’”
Bruce is right on the money. Federalism means never having to say you’re sorry, because it is never clear where political responsibility lies. The “60 Minutes” report did make it clear that New Orleanians find it incomprehensible that the federal government will not step up to the plate. But the city has not yet found an argument that works.
So far, the only way the city has found traction with Washington is in a crisis. If local estimates are right, we may have one by the end of the year, as tens of thousands of small businesses go into bankruptcy, along with mortgage holders and local governments. And we will have reports and recommendations from the New Orleans city and state recovery commissions, reports that will give Louisiana congressional representatives something to work with.
Somewhat counterintuitively, I continue to think that the best argument New Orleanians can make is: “you would want the same done for you.” That is, we should make arguments based on our status as citizens, not stevedores or oil workers. And we should stress culture, not economics. However, I now have a better understanding of what is wrong with the argument Jim Stoner made in the National Review (referred to in my second post). Stoner discussed the feasibility of flood control by comparing Louisiana to the Netherlands. But the Netherlands does not appear to be a federal state, and in any case flood control there is a matter of national preservation. The Netherlands will not write itself off to the sea, but it appears that many in Washington are willing to do just that to New Orleans.
Take a look at Los Angeles following the early 1990s riots and the efforts to "Restore LA" with prominent business and political leaders involved. Take a look at the 9/11/01 site in Lower Manhattan and the project to rebuild that area also involving prominent business and political leaders. The damages to LA and NYC were not as great as the damages sustained in New Orleans. Restoring New Orleans is a humongous project. If its residents and the State of Louisiana have the will to restore New Orleans (and to what extent), it will require the federal government to make significant commitments in money and priorities. Restoration will take a long time; in the meantime, many residents are homeless or relocated. The federal government and all Americans would have to bring full faith and credit to the job of restoration. As we legal types like to say, time is of the essence, especially with the mass of humanity involved in the Katrina disaster. Those of us fortunate not to have been struck by Katrina should perhaps consider "There but for the grace of nature go I." The sounds of New Orleans will still be heard even if the decision is made not to restore, but will haunt us as a dirge that continues without the hope of resumption of life. Feel guilty?
If the federal government doesn't see that it is its responsibility to rebuild New Orleans than is quite obvious that Louisiana needs to step up to the plate. No federal tax money? Louisiana can easily recoup this money by raising taxes on natural gas and and fruits, vegetables and other imports a that pass through its port and state on their way to feed the rest of the nation. Grain doesn't need the infrastructure of a city to be exported (not likely) it seems a port tax could be levied. And if the rest of the country doesn't like it, well, maybe another New Orleans can be found in... some other state where the Mississippi reaches the gulf
while it would certainly seem to me that the federal government needs to be doing more to rebuild a city i lived in for six years, especially in light of the promises made by the president in a nationally televised speech, the alternative raised by downhome is simply not feasible, unless one can tell me how a tax imposed by louisiana on all goods passed through its port will not run afoul of the interstate commerce clause.
This was a typical 60 Minutes report. They get an idea and dig up supporters. This might be okay when investigating simple crime, but when directed at policy and scientific speculation, it probably isn't the best forum.
What is missing is the simple fact that the lower half of La is nearly under water. In mid summer you can go into the backyard of a Baton Rouge house, far from any water and you get the squish-squash of a water table 1/4 inch below the ground.
They know this, it is a fact of life in that area. They choose to live there; they like it!
The problem is, as always with water, engineering is always going to fail eventually. If you put in levies, silt doesn't settle out correctly. The mouth of the mississippi could easily shift 50 miles towards Texas if left to itself. Dredging a ship channel directly into the heart of NO is moronic as best, and designing drainage channels without a lock system to close them off when needed is extremely short sighted. The mouth of the 17th Street canal was blocked off in a few days as Hurricane Rita approached, so how many homes could have been saved with that one simple change.
NO will be rebuilt. Hopefully the residents will embrace their unique environment and disallow mis-engineered solutions which go more to help industry than the inhabitants of La.
It seems to me that if we are going to say that there are certain circumstances from which we should not build a major U.S. city, then we need to expand the conversation to include all the cities along the San Andreas faultline.
We are told by the best mindsin the field that it is a matter of when, not if, that a horrible earthquake will strike that region.
Are we now laying the precedent fot not rebuilding LA? San Fran?, Seattle? It seems to me that the same rationale applies.
How about if a major hurricane devestates Houston or San Antonio or Dallas, or Miami? These cities and others are certainly in danger of facing such a situation.
What about some other type of nonnuclear disaster? We seem to be at a time when we need to have a policy of when we will, and will not, rebuild a major city. To confine this solely to New Orleans is short-sighted.