Flooding is the most common and most costly natural disaster in the United States, and the toll it takes is only expected to grow over the coming years. Rising sea levels, more powerful hurricanes, and more intense rainfall—all worsening thanks to climate change—will displace people from their homes and put increasing strain on the systems we use to address these risks. One of the most important such systems is the National Flood Insurance Program (“NFIP”), which has been in debt to the U.S. Treasury since 2005 and is perpetually derided as “broken.” It seems obvious that a big part of the solution to the problems ailing the NFIP (and to our problem of flood risk more generally) is to move people away from flood-prone areas, and yet the policy reforms intended to address these issues have prove extremely difficult for Congress to enact. In a new paper recently published in the Colorado Law Review, I offer some theories as to why.
A key obstacle to seemingly enlightened policy reform, I argue, is our country’s deep-seated hostility to paternalistic interventions. Drawing on the philosophical literature on paternalism, I note the key features that make such laws objectionable to many people: they seek to override individuals’ judgments about what is best for them. Even when such decisions appear to be flawed (like the choice to live in a flood-prone area, for example), they often depend on value judgments, and it is therefore hard to say that a different choice would be objectively rational. It is impossible, for instance, to weigh the emotional value of a home or neighborhood against the expected future costs of flooding in a way that produces an objectively optimal course of action, in the same way there is no objectively correct way to eat, given the emotional and cultural significance of food.
Paternalistic solutions to the problem of flood risk also risk creating troubling distributive problems. Lower income and historically minoritized communities face disproportionately higher flood risk. Forcing people away from flood-prone homes would disproportionately target such communities for relocation, a disturbing prospect. The problem is reminiscent of cigarette taxes, which have the beneficial effect of reducing smoking but whose burden falls primarily on lower income people who disproportionately smoke and can ill afford the associated taxes.
Thinking that coercion (either in the form of mandatory relocation or risk-rated mandatory flood insurance) is the only solution to this problem is a mistake. Instead, I argue, policymakers should be more focused on ideas that empower people to make better choices, including better disclosure of flood risk and generous, easy to navigate buyout programs that help people move to drier ground when they choose to do so.