Is Anywhere Safe, Part 4

The Camp Mystic situation raises the question of whether we can regulate our way out of newly risky situations. Given Americans' love of private property rights, that might be tough.

My friend Jim Blackburn, who for decades has been the most prominent environmental lawyer in Houston (if that’s not an oxymoron), always says: “Call it climate change or call it weird Texas weather, but something changing.”

Jim’s statement seems truer than ever after the flooding of the Guadalupe River in Central Texas, especially the horrific tragedy at Camp Mystic. Everybdody with ties to Texas seems to, at the very least, know somebody who knows somebody who was involved. (That’s true of me.)

And it raises, yet again, one of the most important questions about the Future of Where: Is anywhere safe? And, if not, what do we do?

I’ve written about this whole question before – most recently here, dealing with the question of whether we will see a generation of client refugees. But there are really two different aspects to this question.

The first is, where will people go and live if long-term changes to the climate, like heat, make where they live intolerable? This is an issue in Phoenix (though a lot of people seem blasé about it), and increasingly it’s an issue in Texas, which gets hotter by the year or so it seems.

But the second question is just as important and maybe more urgent: how do we handle the fact that places we used to think of as safe – like Camp Mystic – become risky places to live or play because extreme weather events are becoming more frequent?

Camp Mystic and the Guadalupe River

And that question can be divided into two pieces: can we prevent people from living or playing in harm’s way in the future … and what do we do about places like Camp Mystic that are already there?

We’ve already seen a lot of publicity over the fact that the Federal Emergency Management Agency tried to change the flood maps around Camp Mystic but the camp successfully challenged those changes. The flood maps are important because they have a profound effect on the ability of people and institutions to buy insurance policies, and many people have argued that if we’re going to get people out of harm’s way, we have to stop subsidizing their insurance, which the federal government does.

But then there’s the question of whether governments can use regulation to prevent people and organizations from building – or rebuilding – in locations that nowadays appear to be dangerous.

The Camp Mystic tragedy has highlighted the fact that in Texas, counties don’t have any power to stop or shape development because they do not have “ordinance-making” power. New development is supposed to be funneled into cities, though this does not always happen – and, anyway, some things like summer camps are always going to be in rural areas.

Still, the Camp Mystic situation was so tragic that it could lead to a rethinking even of county powers. As Blackburn told the Texas Tribune: “It’s private property, and we don’t like to tell people what to do with their private property, but there comes a point where we have to say we’ve had enough.”

There’s been a longstanding legal debate in land use circles as to whether and how local governments can stop people or organizations from rebuilding after a disaster. The common law concept of “police power” gives governments the authority to restrict private activity, including building and rebuilding, in order to protect the public’s health, safety, and sometimes welfare.

Most of the land use regulations I deal with on a daily basis in my work – the everyday work of zoning in separating uses, requiring setback and parking, and so forth – fall into the category of “public welfare,” which is often why there are such legal battles over them. But public health and safety are different: on a conceptual level, at least, nobody challenges the idea that government regulation can protect these things.

Take, for example, one of the most famous land use court cases in history – First English Evangelical Church v. County of Los Angeles, which went to the U.S. Supreme Court in 1987. The case is famous among land-use planners and lawyers for establishing the concept of a “temporary taking” – the idea that if the government impermissibly prevents a landowner from building or rebuilding, that’s a taking of property requiring the government to pay compensation, even if the decision is later reversed and the landowner can move forward with the building or rebuilding.

What’s less well known is the fact that the underlying case was about public health and safety issues involving a summer camp. The church’s camp was up in the mountains above Los Angeles. First it was damaged by wildfires. Then, the following winter – with the area denuded because of the fires – a flood washed the camp away. L.A. County passed an ordinance prohibiting the camp from rebuilding and the camp sued. The camp sued, claiming that it should either be permitted to rebuild or else be compensated by the government if it was prevented from rebuilding. (If Texas counties had ordinance-making power, you could see this same scenario playing out at Camp Mystic.)

The Supreme Court didn’t rule on the merits of the case, only the question of whether the camp could pursue the lawsuit. But the camp never rebuilt. Under the ordinance the camp was prohibited from rebuilding on public health and safety grounds – a perfectly legitimate exercise of governmental “police power”. (The ordinance was eventually invalidated but the camp was so flooded it was never rebuilt.)

Destroyed in the January wildfires, Altadena is not far from the church camp that was the subject of a major “takings” case.

Almost 40 years later, the whole public health and safety stuff has become more relevant than ever because we are experiencing new threats to public health and safety as extreme weather events become more common. Locations that may have seemed safe in the past clearly are not. If structures in these locations are wiped out in a disaster, it is – as was the situation in the Los Angeles case – a perfectly legitimate exercise of government authority to prohibit their rebuilding.

But it does place the financial burden on the organizations whose structures are wiped out – or, alternatively, their insurance companies. (We always seem to come back to insurance.)

So the question really is, how much tolerance do we have for these new levels of risk? Are we willing to use government regulation to prevent building and rebuilding in risky areas? Or will be reluctant to regulate our way out of this – and, at the same time, use federally subsidized insurance programs (taxpayers again) to essentially pay people to rebuild over and over again?

I don’t see much alternative to regulating our way out of this situation. After all, there probably isn’t enough government money in the world to buy everybody out. And after Camp Mystic there’s no question that we’re going to have to remove a lot of structures like those along the Guadalupe River.