Failing to Protect: 3 Actions Our Leaders Must Take to Save Our America's Crumbling Infrastructure

Miles of Midwest land under 10 feet of water, a major bridge collapsing to the ground, a flood-ravaged New Orleans—these are all images we won’t soon forget. But how can we keep history from repeating itself yet again? Barry B. LePatner offers some suggestions.

When a bridge collapses, so does public faith in government. —Investigative Report to Joint Committee to Investigate the I-35W Bridge Collapse, Gray Plant Mooty

New York, NY (July 2008)—Our nation’s infrastructure is in dire shape. If the past few weeks of flood coverage following the Midwest’s 30-plus deadly levee breaks doesn’t convince you, think back a year or so ago. Just last summer, the collapse of the I-35W Bridge left many of us pondering the safety of our highways and byways. And who could ever forget the shocking images of post-Katrina New Orleans? If you’re wondering what America has done in response to these disasters, construction attorney Barry B. LePatner says the answer is "not nearly enough"—and that does not bode well for the future.           

"Each of these infrastructure breakdowns could have been prevented," says LePatner, coauthor of Structural & Foundation Failures (McGraw-Hill, 1982, coauthored with Sidney M. Johnson, P.E.) and author of Broken Buildings, Busted Budgets: How to Fix America’s Trillion-Dollar Construction Industry (The University of Chicago Press, October 2007, ISBN-13: 978-0-226-47267-6, ISBN-10: 0-226-47267-1, $25.00). "Take the Midwest floods, for instance. In 1993 the same areas experienced massive flooding that resulted in over $10 billion in damage as well as loss of life. The current flooding has so far cost $1.5 billion and that number is sure to grow.

"It makes you wonder What went wrong?" he continues. "Why weren’t proper measures taken to keep this type of flooding from happening again? Who dropped the ball—and why were they allowed to drop it? We as a society need to ask these questions, not to point the finger of blame, but to make certain that what was avoidable can be prevented in the years to come." 

If you want to pinpoint a common problem in each of these infrastructure failures, look no further than the systems used to identify needed repairs and to allocate funds for infrastructure remediation, says LePatner. Since the 2005 National Transportation Act, states are allowed to do what they choose with the money given to them by the federal government. For the very first time, the federal government has stepped back from establishing national guidelines for the design and maintenance of our critical infrastructure facilities.

Unfortunately, the powers that be—politicians constantly vying for re-election—prefer to spend that money on things that get noticed by the public. Simply put, they get far more political mileage from, say, beautifying an old park than from making (less glamorous) repairs on a bridge or levee. Consequences can be disastrous.

"Deferral of money makes infrastructure repair a losing battle," says LePatner. "After all, allocating minimal amounts to keep a failing bridge or a levee in status quo condition is just plain wrong when facing the inordinate rebuilding costs and economic damage that will result after it fails and causes huge devastation. Post-infrastructure failure costs are always astronomical—in terms of dollars and human lives—and far outweigh the costs of any preventive measures that could have been taken."

So…now that the Midwest floods have wreaked their havoc, will our nation change its irresponsible ways in regard to its infrastructure needs? LePatner provides a few of his own solutions:             

Stop using inaccurate statistics as justification for not spending the necessary monies on infrastructure. In some locations in the Midwest the recent flooding and that which occurred back in 1993 was designated as "500-year flooding." Despite popular belief, this does not mean that such floods happen once every 500 years but that they have a 1/500 (or 0.2 percent) chance of happening in a year. According to a recent Kansas City Star story, if FEMA determines that a levee can withstand a 100-year flood—i.e., a flood that has a 1 percent chance of happening in a given year—then the area that levee protects is not considered to be in a flood plain. This designation means federal flood insurance isn’t required for residents who live in the area. 

"These areas are flooding more and more frequently," says LePatner. "Despite that fact, officials from organizations like the Army Corps of Engineers and FEMA like to shirk responsibility by saying they couldn’t have predicted the severity of the flooding. That may be true, but what they can control is how risk is assessed in these areas. Some of the methods being used for risk assessment—like floodplain maps—are outdated and inaccurate. Money needs to be allocated so that risk can be reassessed based on current circumstances so that levees can be built up and strengthened where they need to be.

"The bottom line is that people need to know if there are areas where they shouldn’t build their homes or establish their businesses," he adds. "Relying on inaccurate information to make these decisions puts families and businesses at risk and extends the potential for high costs in damages in the future."

Start calculating "real costs" when making decisions regarding the long-term impact of potential disasters. Needed infrastructure repairs are often ignored because the money it would take to make them in the short term a) isn’t easily available, or b) would restrict the amounts of money politicians could spend in areas more favorable for them. But what happens when you look long term—all the way down the road to future disasters, in other words? Suddenly, you realize the costs of infrastructure remediation pales in comparison to the future costs of ignoring it.

"Let’s use the levee breaks and flood wall breaches that resulted from Hurricane Katrina as an example," says LePatner. "Before Katrina struck, it would have taken an estimated $10 billion to repair the levee system so that it could withstand such a storm and protect most but not all of the New Orleans metro areas. But that’s not the end of the story: You must also take into account that New Orleans’ population has been reduced by nearly 50 percent, and trade and commerce in the area may never fully recover.

"The point is that we must start considering all of the ‘what ifs’ related to our failing infrastructure," he adds. "Katrina should have served as an example that ‘hoping nothing happens’ is not an acceptable course of action. Anyone who truly took the long view would quickly see that it’s almost always a terrible mistake to let infrastructure repair needs slide. Consider, for instance, that a recent report from the American Counsel of Engineering Companies shows that California alone estimates that it is losing $15 billion or more a year in loss of production due to the lack of necessary spending to repair the state’s infrastructure. State governments should take into account how much they are losing by avoiding the repairs their infrastructure needs. Money is being lost whether there is a disaster or not; the only thing that differs is how much money is lost."

Force politicians and other government officials to act on expert recommendations given to them. Our nation’s infrastructure is frequently inspected, but recommendations for repairs often fall on deaf ears or get held up due to lack of funding. The I-35W Bridge is a prime example. According to a recent investigative report commissioned by the Minnesota Department of Transportation and compiled by t
he firm Gray Plant Mooty, MnDOT hired outside consultants to a) assess the fatigue life and fatigue cracking in the bridge and b) determine whether it was necessary to add "redundancy" to the bridge, providing extra support to the original structure, as a safety precaution. Long story short, neither was accomplished. According to the report: "MnDOT initially recognized the need for redundancy but later focused on the fatigue analysis. Ultimately, the Bridge did not receive any materially different treatment than it had historically and redundancy was not added to the Bridge."

"It turns out a bent gusset plate was photographed and filed in 2003 but none of the inspectors or MnDOT officials who looked at the photo noticed," says LePatner. "As it turns out, the bending of multiple plates is what caused the collapse of the bridge. If the repairs and inspections above had been carried out as planned, perhaps the bent gusset plate would have been noticed and the bridge could have been closed to protect the public. According to the investigative report, as a result of the bridge collapse that happened because these repairs weren’t made, ‘lives were shattered…So too, was confidence in the [state’s] bridges.’ Fixing infrastructure problems that could lead to loss of human life is compulsory, not optional. We should create an independent system that requires that monies are used as designated and which then oversees the system to ensure that projects get completed as planned. It should not be earmarked money or pork barrel spending, but a non-discretionary spending item that must go towards its intended purpose."

"There’s a quote from the recent I-35W Bridge investigative report that says, ‘When a bridge collapses, so does public faith in government,’" says LePatner. "Given what has recently happened in the Midwest, we can change the word ‘bridge’ to represent any form of infrastructure in the country and in doing so one realizes how critical the situation is.

"For better or worse, Americans rely on the government to protect them from harm, and clearly government at all levels is falling down on the job," he continues. "We hear about the billions of dollars spent on the War on Terror while here at home we are at risk every day because our infrastructure is crumbling. As a government and a society we must make safety at home a priority—and shoring up our infrastructure is the natural place to start."

About the Author
Barry B. LePatner is the founder of the New York City-based law firm LePatner & Associates LLP. For three decades, he has been prominent as an advisor on business and legal issues affecting the real estate, design, and construction industries. He is head of the law firm that has grown to become widely recognized as one of the nation’s leading advisors to corporate and institutional clients, real estate owners, and design professionals.

Mr. LePatner is widely recognized as a thought leader in the construction industry. His new book, Broken Buildings, Busted Budgets: How to Fix America’s Trillion-Dollar Construction Industry (The University of Chicago Press), which was reviewed in the Wall Street Journal, has created a national debate among owners, designers, and other key stakeholders. Mr. LePatner has been featured in BusinessWeek, the Boston Globe, the New York Times, Crain’s New York Business, the Chicago Tribune, and other prestigious publications. His articles and speeches on the perilous state of our nation’s infrastructure have garnered him widespread attention. He has appeared on many television and radio broadcasts, including a CNBC appearance and several National Public Radio segments. A November 2007 Governing Magazine article stated, "If there’s a guru of construction industry reform, it’s LePatner."

A nationally recognized speaker, Mr. LePatner has addressed audiences on topics central to trends affecting the real estate and construction industries at recent events sponsored by: The International Economic Forum of the Americas, the Real Estate Board of New York; FIATECH, the National Realty Club, the Construction Owners Association of America, the Construction Management Association of America, the Construction Financial Management Association, and MC Consultants Inc.’s Construction Defect and Construction Law Conference. He also routinely presents CLE-accredited courses to other law firms and organizations on how the construction industry actually works and how they can best protect their clients from the vagaries of the construction process.

LePatner co-sponsored "Real Estate Outlook," an annual executive seminar series for corporate and real estate leaders; "Protection, Survival, Readiness: Project Strategy in the Post-9/11 World," a seminar presented to institutional, developer, and corporate real estate executives; and "Secure Space," a building security seminar for corporate owners and developers. He has also presented "Construction Cost Integrity: Equitable Risk Allocation Agreements" and "Protecting the Owner from Pitfalls in Today’s Construction Projects," a series of Continuing Legal Education lectures to law firms and their in-house real estate departments; and the highly successful "Marketing for Design Professionals" course at the Harvard Graduate School of Design’s Summer Program, from 1990-2004 with A. Eugene Kohn, founder of KPF Associates.

Mr. LePatner has written extensively and is widely quoted in the media on the subject of construction law. He previously co-authored the legal sections of the Interior Design Handbook, McGraw-Hill 2001, and Structural & Foundation Failures: A Casebook for Architects, Engineers & Lawyers, McGraw-Hill 1982, with Sidney Johnson, P.E.

Recently published articles include: "Sarbanes-Oxley’s Wake-Up Call to the Construction Industry," The CPA Journal, December 2007, co-authored with Henry Korn, Esq., and Anthony Chan, CPA; "Today’s Construction Contracts: Drafter Beware," Legal Times, September 2007; "The Industry That Time Forgot," Boston Globe, August 2007; "Construction Cost Increases: Owners Should Know the Difference Between the Myths and Realities," New York Real Estate Journal, October 2006; and "Are You Prepared—Disaster Management Plans Help Owners Protect Their Investments" in the March/April 2006 issue of Commercial Investment Real Estate magazine. Articles published in the New York Law Journal include: "Caveat Advocatus—Drafting Construction Agreements for Your Client’s New Construction Project Ain’t What It Used to Be," March 27, 2006; "Insuring a Construction Project Against Water and Mold," October 25, 2004; "Building Security Measures and Owner Liability After Sept. 11," May 1, 2003, co-authored with Henry Korn, Esq.

In May 2002, LePatner was elected by the American Institute of Architects to receive an Honorary AIA Membership, one of the highest honors the organization can bestow upon an individual who is not an architect and which is granted to those who have devoted their careers in service to the architectural profession.

In July 2001, LePatner was elected to the Board of Trustees of DIFFA, the Design Industries Foundation Fighting AIDS. He has also served on numerous advisory committees, including: the Advisory Board, Society for Marketing Professional Services, 1990-93; the board of the New York Building Congress; Board of Advisors, Legal Briefs for the Construction Industry, 1981-89; American Institute of Architects Advisory Committee, 1984; and the National Academy of Sciences, 1984-85. He is a member of the Association of the Bar of the City of New York, the New York State Bar Association, and the American Bar Association.

About the Book
Broken Buildings, Busted Budgets: How to Fix
America’s Trillion-Dollar Construction Industry (The University of Chicago Press, October 2007, ISBN-13: 978-0-226-47267-6, ISBN-10: 0-226-47267-1, $25.00) is available at bookstores nationwide, from major online booksellers, and direct from the publisher at

For more information, please visit