The Role of New Towns in a Rational Retreat from the Louisiana Coast

1. The Role of New Towns in a Rational Retreat from the Louisiana Coast Edward RichardsProfessor and DirectorLSU Law Center Climate Change Law and Policy Project (Google: Edward Richards climate change)

2. The Mantra • I believe in climate change!! • I believe in sea level rise!! • I believe coastal Louisiana is flat as a pancake!!

3. Learning Objectives: Why Retreat? • The coastal parishes are already at unsustainable risk. • The risk will only increase, even if the Master Plan works. • People’s lives will be ruined or lost. • More levees will be built, which will destroy the remaining wetlands and prevent ecological succession and a new equilibrium on the coast.

4. Why the Master Plan is Irrelevant

5. Rising sea level drowns deltas • The modern delta took 7,000 years to build with unlimited sediment. • It only built after sea level stabilized, along with every other major delta. • Accelerating sea level rise expands the accommodation space faster than nature, much less man, can fill it.

6. South Louisiana is already at unsustainable risk (Red > 9 feet)

7. No Worries! Uncle Sam has to fix it for me! The Louisiana belief that the rest of the US owns us flood protection and that we can sue for it.

8. Flood Control Act of 1928, 33 U. S. C. §702c • "[n]o liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place” • “Accordingly, in determining whether §702c immunity attaches, courts should consider the character of the waters that cause the relevant damage rather than the relation between that damage and a flood control project.” • Central Green Co. v. United States, 531 U.S. 425 (2001) (Ignored by the 5th Circuit.)

9. But that does not apply to takings!! (We can discuss another day why the MRGO takings case was junk science – look at Fort Proctor.)

10. Inverse Condemnation by Temporary Flooding (MRGO theory) • “The inverse condemnation claim here is based on a taking of a flowage easement. It is well established that the government cannot take such an easement without just compensation.” • [I]n Arkansas Game & Fish Commission v. United States, 568 U.S. 23, 34 (2012), the Supreme Court held that temporary, government induced flooding may give rise to a claim for the taking of a flowage easement. • (St. Bernard Par. Gov’t v. United States, 887 F.3d 1354 (Fed. Cir. 2018) – MRGO case)

11. The Net Benefits Test • The MRGO assumed for the purposes of review that the lower court findings on causation were valid, but did footnote that this was unlikely. • The court determined that while flood control could result in a compensable temporary taking, the test for compensation was the net benefit of federal flood control minus the temporary damage. • Where is New Orleans without river or coastal levees?

12. The No Action Problem • The court made clear that a taking must be active. • There cannot be a taking because the federal government failed to do something, such as provide flood protection. • While politically impossible, these two findings would allow the government to do levee removal without compensation. • Environmentally, this would be even better than dam removal. • LA could remain a major oyster and fishing center with climate change.

13. Wait! Taking my levee and drowning my dog would be a tort!! The Federal Tort Claims Act

14. The FTCA in a nutshell • As long as the feds do not violate the constitution, a statute, or regulation directly forbidding the action, they can intentionally do anything they want to you without tort liability. • Expose you to atomic fallout and give your kids cancer. (Allen v. United States, 816 F.2d 1417 (10th Cir. 1987)) • Knowingly and intentionally expose your city to risk of destruction. (In re Katrina Canal Breaches Litigation, 696 F.3d 436 (5th Cir.(La.) 2012)) • I could go on, and on, and on.

15. You are going to be on your own, Louisiana! Don’t screw up! Looking Forward– As climate stresses US resources, places such as Miami, Houston, NYC, and other high value, high population risk centers will be the #1 priority for coastal and bailout money.

16. The Real Problem with the Master Plan • Even if it works, and this is an open question at best, it will provide limited and transient protection, requiring indefinite infusions of huge amounts of cash – which there is no path to getting. • Retreat takes a LONG time, even if you start today. • The Master Plan consumes all of the resources that could be used to start the retreat.

17. New Towns, not pounding (pumping) sand!!

18. The Psychology of Retreat • People will not retreat FROM until the last second. • For LA, that is the big storm with no bailout. • Meanwhile, the economy degrades, property values decrease, and services fail – Detroitification. • People will retreat TO (better opportunity, more affordable housing, and better schooling for their kids). • The coastal parishes and New Orleans have been depopulating and on the economic decline for decades. Just look at the demographics.

19. New Towns • (Google - Columbia Maryland New Towns) • Intentionally planned communities north of I-10 • Incentivized with Master Plan money and cooperatively developed with the private sector. • Both affordable housing and civic infrastructure.

20. Why New Towns, not the Master Plan? • Master Plan • Dredging and pouring concrete generates few jobs. • The Master Plan is an eternal cash sink even if it works as planned. • Housing construction generates a huge number of jobs. • New towns draw people off the coast organically, allowing cultural transfer. • New towns become economic engines.

21. The Louisiana Coast in 2100 • Much farther inland, no matter what we do. • Mostly depopulated, no matter what we do. • If New Orleans is not destroyed by a major storm – high probably by 2100 – it will an isolated island with a struggling economy. • We will leave the coast. • Do we do it intentionally and rationally? • Or …

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