Did NEPA Drown New Orleans? The Levees, the Blame Game, and the Hazards of Hindsight

This Article highlights the. hazards of hindsight analysis of the causes of catastrophic events, focusing on theories of why the New Orleans levees failed during Hurricane Katrina in 2005 and particularly on the theory that the levee failures were caused by a 1977 National Environmental Policy Act (NEPA) lawsuit that resulted in a temporary injunction against the Army Corps of Engineers\u27 hurricane protection project for New Orleans. The Article provides a detailed historical reconstruction of the decision process that eventuated in the New Orleans storm surge protection system, focusing both on the political and legal factors involved and on the standard project hurricane risk assessment model that lay at the heart of the Army Corps of Engineers\u27 decisionmaking process. The Article then offers a detailed analysis. of how and why Hurricane Katrina overcame the New Orleans levee system. As this analysis demonstrates, the argument that the NEPA lawsuit played a meaningful causal role in the Katrina disaster is not persuasive. Parallel lessons are then drawn for forward-looking disaster policy. The same problems of uncertainty and complexity that confound the attempt through hindsight to attribute causal responsibility for a disaster also confound the attempt to predict using foresight the variety of outcomes, including potentially disastrous ones, that may flow from policy choices. Focusing narrowly on any single parameter of complex natural and human systems is likely to dramatically distort environmental, health, and safety decisionmaking, whether the parameter is a standard project hurricane when planning a hurricane protection plan, or the equally mythical lawsuit that sunk New Orleans when attempting to allocate responsibility for the plan\u27s failure some forty years later

Did NEPA Drown New Orleans? The Levees, the Blame Game, and the Hazards of Hindsight

This Article highlights the. hazards of hindsight analysis of the causes of catastrophic events, focusing on theories of why the New Orleans levees failed during Hurricane Katrina in 2005 and particularly on the theory that the levee failures were caused by a 1977 National Environmental Policy Act (NEPA) lawsuit that resulted in a temporary injunction against the Army Corps of Engineers\u27 hurricane protection project for New Orleans. The Article provides a detailed historical reconstruction of the decision process that eventuated in the New Orleans storm surge protection system, focusing both on the political and legal factors involved and on the standard project hurricane risk assessment model that lay at the heart of the Army Corps of Engineers\u27 decisionmaking process. The Article then offers a detailed analysis. of how and why Hurricane Katrina overcame the New Orleans levee system. As this analysis demonstrates, the argument that the NEPA lawsuit played a meaningful causal role in the Katrina disaster is not persuasive. Parallel lessons are then drawn for forward-looking disaster policy. The same problems of uncertainty and complexity that confound the attempt through hindsight to attribute causal responsibility for a disaster also confound the attempt to predict using foresight the variety of outcomes, including potentially disastrous ones, that may flow from policy choices. Focusing narrowly on any single parameter of complex natural and human systems is likely to dramatically distort environmental, health, and safety decisionmaking, whether the parameter is a standard project hurricane when planning a hurricane protection plan, or the equally mythical lawsuit that sunk New Orleans when attempting to allocate responsibility for the plan\u27s failure some forty years later

Workers at Risk: Regulatory Dysfunction at OSHA

This white paper explores the causes of the Occupational Safety and Health Administration (OSHA)’s regulatory dysfunctions and describes their negative impacts on OSHA and America’s Workers. With the decreasing power of unions to organize and press employers to implement strong health and safety programs, employees in every occupation rely on OSHA to protect them from occupational hazards. Yet, in the last decade, OSHA has dropped more standards from its regulatory agenda than it has finalized, largely due to insufficient budge authority. And the agency’s enforcement program has assessed such paltry fines for even fatality-related violations of the law that many employers see no incentive in addressing hazards, much less developing precautionary health and safety programs. After describing OSHA’s problems in detail, this paper outlines a number of reforms that could enhance the agency’s performance. Although certain aspects of the Occupational Safety and Health Act could use improvement, the recommendations in this paper focus on regulatory reform—administrative actions that OSHA could implement in the short term.The Kay Bailey Hutchison Center for Energy, Law, and Busines

Reorienting OSHA: Regulatory Alternatives and Legislative Reform

The consumer and environmental movement that ushered in the 1970s brought with it several unique experiments in governmental control over business behavior. President Nixon reorganized the federal government to create the Environmental Protection Agency (EPA) just as Congress was enacting comprehensive amendments to the Clean Air Act, the Clean Water Act, and the Federal Insecticide, Fungicide and Rodenticide Act. Congress created the Consumer Product Safety Commission (CPSC) to administer new and existing statutes designed to protect children and the general public from hazardous products. A revitalized Federal Trade Commission began to use its latent rulemaking powers, and Congress soon gave it new powers to write rules to harness industry. Even the Food and Drug Administration (FDA) began to experiment with procedural innovations designed to enhance its regulatory efficiency

Center for Progressive Reform Report: Protecting Workers In A Pandemic--What The Federal Government Should Be Doing

The re-opening of the American economy while the coronavirus that causes COVID-19 is still circulating puts workers at heightened risk of contracting the deadly virus. In some blue-collar industries, the risk is particularly acute because of the inherent nature of the work itself and of the workplaces in which it is conducted. And the risk, for a variety of reasons, falls disproportionately on people of color and low-income workers. With governors stay-at-home orders and other pandemic safety restrictions, Center for Progressive Reform Member Scholars Thomas McGarity, Michael Duff, and Sidney Shapiro examine the federal government\u27s many missed opportunities to stem the spread of the virus in the nation\u27s workplaces, and make recommendations for what needs to happen next to protect employees on the job

Air Conditioner User Behavior in a Master-Metered Apartment Building

Air conditioner operation was studied in order to understand how energy consumption and peak power are determined by user behavior, equipment operation and building characteristics. In a multi-family building, thirteen room air conditioners were instrumented in eight apartments, and interviews were conducted with the residents about their operation of the units. The predominant mode of operation was to switch the unit on and off manually; only one resident consistently let it operate thermostatically, and many residents were not aware that the unit had a thermostat. Ambient temperature and time of day were observed to have major effects on the occupant's decision to turn the unit on or off. Even though residents did not pay for electricity, numerous noneconomic factors were found to limit their use of air conditioning. Across apartments, seasonal air conditioner energy consumption varies by two orders of magnitude while interior July temperature varies by 3.7°C

Limiting Federal Agency Preemption: Recommendations for a New Federalism Executive Order

The structure of the U.S. Constitution reflects a profound respect for the principles of federalism and state sovereignty. These principles require the federal government to recognize and encourage opportunities for state and local governments to exercise their authority, especially in areas of traditional state concern such as the protection of the health, safety, and welfare of their citizens. However, over the last six years there has been a coordinated Executive Branch effortto use the regulatory process to shield certain product manufacturers from state tort liability. The Food and Drug Administration, National Highway Traffic Safety Administration, and Consumer Product Safety Commission, among others, have attempted to use the doctrine of preemption to block consumers’ access to state courts. During the Bush Administration, executive agencies have included assertions of preemption in regulatory preambles, filed amicus briefs in litigation in which other litigants have argued that federal statutes preempt state law, and submitted to Congress draft legislation that would preempt state and local authority to protect public health, safety, and the environment. The Obama administration should replace Executive Order 13132, which instructs administrative agencies to consider the federalism implications of their actions, with an Executive Order that is more protective of the legitimate interests of state governments in maintaining their traditional role in protecting the health, safety and welfare of their citizens. While the current order has some desirable features, it is inadequate to prompt the type of deliberations in which agencies should engage when they are considering whether to support the preemption of state law

Influence of Air Conditioner Operation on Electricity Use and Peak Demand

Electricity demand due to occupant controlled room air conditioners in a large mater-metered apartment building is analyzed. Hourly data on the electric demand of the building and of individual air conditioners are used in analyses of annual and time-of-day peaks. Effects of occupant schedules and behavior are examined. We conclude that room air conditioners cause a sharp annual peak demand because occupants have strongly varying thresholds with respect to toleration of high indoor temperatures. However, time-or-day peaking is smoothed by air conditioning in this building due to significant off-peak operation of air conditioners by some occupants. If occupants were billed directly for electricity, off-peak use would probably diminish making the peaks more pronounced and exacerbating the utility company's load management problems. Future studies of this type in individually metered apartment buildings are recommended