Showing 9 of 20 Publications by R.J. Lehmann

Comments of ICLE to the CFTC on FTX Request for Amended DCO Registration Order

Regulatory Comments Introduction The International Center for Law & Economics (ICLE) is grateful for the opportunity to submit these comments in support of FTX’s application to amend . . .


The International Center for Law & Economics (ICLE) is grateful for the opportunity to submit these comments in support of FTX’s application to amend its DCO registration to allow it to clear margined products directly for retail participants.

The vast majority (some 96%[1]) of global crypto derivatives trading takes place outside the U.S., much of it on platforms operating non-intermediated retail models similar to that proposed in FTX’s application—but with one crucial difference: these offshore exchanges are largely unregulated. The reason for the disparity in domestic vs. foreign trading volumes is clear: regulatory constraints and costs in the U.S. make the operation of such platforms impossible or unviable. FTX’s proposal would pave the way to bring the technology and business models currently employed to facilitate virtually the entirety of the world’s crypto derivatives trading into the regulated structure of U.S. derivatives markets. The only thing standing in the way is the possible inflexibility of that regulatory structure in the face of disruptive competition.

The obvious market benefits of FTX’s proposal are that:

  1. It would free capital that would otherwise be pledged as collateral, which could greatly expand liquidity in crypto markets or could be deployed elsewhere in the financial system;
  2. It would introduce a competitive alternative to the current exchanges, thus providing investors savings on what they would otherwise pay in commissions, account origination fees, etc.; and
  3. It would offer clear product differentiation: e.g., by introducing a new mechanism for counterparty risk mitigation and by offering direct access to retail investors (with inherently lower costs of participation, more and cheaper information, and technological enhancements like a direct-access mobile interface).

The latter two of these benefits (and to some extent even the first) go particularly to the enhancement of competition in U.S. derivatives markets.

Concerns that markets lack sufficient competition are at the forefront of current policy debates. Legislators are currently working on draft bills that seek to promote competition in digital markets, and President Biden recently issued an executive order advocating for a “whole of government” approach to competition.[2]

Unfortunately, the renewed focus on how governments may boost competition has a significant blindside when it comes to government-created barriers to competition. Rather than offering a solution, government regulations are all too often the cause of reduced competition. This is notably the case when regulation artificially narrows a market by preventing new and innovative firms from disrupting entrenched incumbents.

In other words, if the “whole-of-government” approach to promoting competition means anything, it means that regulatory agencies should work to remove state-created, artificial barriers to market entry that are not absolutely required to accomplish core regulatory functions. The CFTC has precisely that opportunity with FTX’s application.

The market for crypto (and many other) derivatives is currently a lucrative duopoly, dominated by the Chicago Mercantile Exchange (CME) and the Intercontinental Exchange (ICE). Both firms have long been shielded from robust competition by a protective, if well-intentioned, moat of government regulation. The CFTC now has a unique opportunity to open this duopoly to disruptive competition.

FTX’s application would bring both technological and business-model innovation to the derivatives market, carrying with them the promise of increased competition, reduced risk, more efficient pricing, and lower costs for investors. There is always reluctance to embrace the new, particularly in areas that deal so intrinsically with risk. But a sensible measure of caution must not be allowed to morph into costly intransigence.

FTX’s application, while ambitious in its aims, is, in fact, quite modest in its mechanisms. It is respectful of the existing, overarching regulatory paradigm implemented to protect consumers, investors, and the financial system as a whole; it contemplates significant protections and backstops to shore up any increased risk it might introduce; and it ensures that ongoing oversight by the CFTC is readily facilitated.

Indeed, approval of FTX’s application would not entail the abandonment of the CFTC’s core principles, but merely a recognition that the specific implementation of those principles may not be optimal for certain novel business models and technology. As Chairman Benham recently remarked:

[T]he digital asset market would benefit from uniform imposition of requirements focused on ensuring certain core principles, including market integrity, customer protection, and market stability. At the CFTC, we have seen that a regulatory regime focused on core principles can be successful in overseeing a wide variety of markets, and have no reason to think those same principles cannot be applied to digital asset markets.[3]

In short, the CFTC should jump at this opportunity to introduce some well-regulated experimentation into the derivatives market: the likely social benefits of this effort significantly outweigh the potential harms.

Read the full comments here.

[1] See, e.g., Philip Stafford, Crypto industry makes push into regulated derivatives markets, FINANCIAL TIMES (Feb. 21, 2022),

[2] Executive Order 14036 on Promoting Competition in the American Economy, § 2(g) (Jul. 9, 2021) inthe-american-economy (“This order recognizes that a whole-of-government approach is necessary to address overconcentration, monopolization, and unfair competition in the American economy.”).

[3] CFTC Chairman Rostin Behnam, Letter to the U.S. Senate Committee on Agriculture, Nutrition, and Forestry and House Committee on Agriculture (Feb. 8, 2022) at 4, available at ponse%20letter.pdf.

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Financial Regulation & Corporate Governance

R.J. Lehmann on Elon Musk’s Twitter Acquisition

Presentations & Interviews ICLE Editor-in-Chief R.J. Lehmann joined the Heard Tell Show to discuss Elon Musk’s bid to buy Twitter, shareholder rights, platform moderation, and regulatory review of . . .

ICLE Editor-in-Chief R.J. Lehmann joined the Heard Tell Show to discuss Elon Musk’s bid to buy Twitter, shareholder rights, platform moderation, and regulatory review of the transaction. The full episode is embedded below.


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Financial Regulation & Corporate Governance

Could the Ukraine Crisis Move Florida to Fix Its Insurance Crisis?

Popular Media With the March 11 scheduled close of its regular session fast approaching, the Florida Legislature remains so focused on putting the finishing touches on its . . .

With the March 11 scheduled close of its regular session fast approaching, the Florida Legislature remains so focused on putting the finishing touches on its various culture-war signaling bills that one might think Tallahassee hasn’t noticed that the state’s property insurance market is rapidly hurtling toward utter collapse.

The causes are multi-pronged: a uniquely challenging set of catastrophe risks, all increasingly magnified by the combination of rapid development and climate change; a litigation environment in which claims disputes drag on years beyond the events that initiated them; a reputed epidemic of questionable claims, many related to roofs; and a primary market that, more than a decade past its last major crisis, remains far too reliant on thinly capitalized domestic companies with insufficient geographic diversification.

All of this is, as they say, coming to a head. The latest in a series of concerning indicators came with the Feb. 25 order by Circuit Judge Angela Dempsey appointing the Florida Department of Financial Services as receiver for the Orlando-based St. Johns Insurance Co., which Insurance Commissioner David Altmaier had deemed insolvent. Dempsey subsequently issued a Feb. 28 order approving the transfer of 147,000 St. Johns policies to Slide Insurance Co.

St. Johns adds to the growing list of recent liquidations of Florida property insurers. The department last year ordered liquidations of both Gulfstream Property and Casualty Insurance Co. and American Capital Assurance Co. And several other domestic writers similarly evince signs of teetering on the brink of insolvency:

  • As it previously did with St. Johns, ratings agency Demotech has pulled the rating for Avatar Property & Casualty Insurance Co.
  • Tampa-based Lighthouse Property Insurance Corp. has ceased writing new Florida business, just a month after it had raised $65 million to recapitalize.
  • While not yet pulling back on underwriting, Clearwater-based Southern Fidelity Insurance Co. is seeking rate increases of 85% and 111%, with CEO Bryon Wells warning that: “Without these increases we would have to have substantial amounts of capital.”
  • Florida Farm Bureau Insurance has ceased writing new homeowners business.
  • Deerfield Beach-based People’s Trust Insurance has ceased writing new business in eight South Florida and Central Florida counties.

TypTap Insurance Group, a home and flood-focused insurtech subsidiary of Tampa-based HCI Group, had been planning an initial public offering this year. That plan was scuttled in January, with the company citing unfavorable market conditions. TypTap has now likewise ceased writing new business in the state.

The ominous signs don’t end there. Progressive Insurance is non-renewing 56,000 Florida policies covering homes with roofs that are more than 15 years old. And United Insurance Holdings Corp.—the ninth largest homeowners insurer in Florida—announced last month that it also had ceased writing new homeowners business in the state as of Jan. 1.

Given these cascading dominoes, one’s concern must turn to Citizens Property Insurance Corp., Florida’s state-run insurer-of-last-resort. In the month of January alone, Citizens grew by 17,485 policies. Its Jan. 31 count of 776,790 policies in-force was up 75% from the 443,228 policies that were in-force Jan. 31, 2020. At the current pace of growth, Citizens would top 1 million policies—a level it hasn’t seen since January 2014—by the end of 2022.

Which brings us back to the Legislature, which certainly has not given these issues the priority they would seem to merit. But a pair of property-insurance-reform measures—S.B. 1728 and S.B. 186—have slowly been winding their way through the state Senate, and both share a provision that could gain some attention amid the prevailing zeitgeist, even if only in a limited way.

What the bills share is that both would clarify that Citizens’ statutory “glidepath” applies only to an insured’s primary residence. Initially implemented in 2009, the glidepath had limited Citizens’ annual premium increases to 10%. S.B. 76, passed last year, calls for a series of gradual increases in the cap, which was raised to 11% this year and will continue to rise by one percentage point each year until ultimately hitting 15% in 2026.

By limiting the glidepath to primary residences, the legislation currently before the Senate would allow Citizens to immediately charge risk-based rates to the many second homes and vacation homes currently covered by the state-run insurer. The change would serve both to improve Citizens’ financial position and, at the margin, to discourage some policyholders from turning to Citizens who might otherwise be able to obtain private coverage.

Those include, of course, some properties—many of them in Miami-Dade and southern Broward County—owned by the very so-called “oligarchs” that the Biden administration and many Western governments are currently in the process of sanctioning following Russia’s unprovoked invasion of Ukraine. As is well-known, South Florida has been one of the favored spots for wealthy Russians over the past decade or two. Over that time, Sunny Isles Beach has gained the nickname of “Little Moscow,” while spots like tony Fisher Island have similarly drawn interest from Russian billionaires.

Of course, wealthy Russian nationals (much less the smaller group who could be called “oligarchs”) constitute only a small portion of the non-primary residences currently insured by Citizens. And removing vacation homes from the Citizens glidepath, while certainly a step in the right direction, would not be nearly enough to fix problems of this magnitude. Fortunately, the two Senate bills do not stop there.

S.B. 186, sponsored by Sen. Jeff Brandes (R-St. Petersburg), would make several changes to Citizens, including:

  • Allowing surplus lines insurers (who, notably, do not participate in the Florida Insurance Guaranty Association) to participate in Citizens depopulation programs, so long as the insurer’s policy count remains above 700,000;
  • Increasing the maximum surcharges that can be levied on Citizens policyholders in the event of a projected deficit to any of its three accounts (personal lines, commercial lines, and coastal accounts), with surcharges rising to 20% if Citizens passes one million policies and 25% if it passes 1.5 million;
  • Requiring that a policy absorbed by Citizens from an insurer deemed unsound be assessed the higher of either the old premium or the premium that Citizens would normally assess for that given property; and
  • Providing that a residential Citizens policyholder is not eligible for renewal if an authorized insurer provides them with a coverage offer that is no more than 20% greater than the Citizens renewal premium.

S.B. 1728, sponsored by Senate Banking and Insurance Committee Chair Jim Boyd (R-Bradenton), shares some features with S.B. 186, including removing non-primary residences from the Citizens glidepath and disallowing renewals for policyholders who receive coverage offers that are no more than 20% greater than their Citizens premium.

It also looks to address the recent explosion of roof claims by allowing insurers to only cover the depreciated actual cash value of roofs that are more than 10 years old. Roofs that are less than 10 years old or that were damaged by named hurricanes or in total loss events would still have to be covered for full replacement costs.

The Brandes bill is currently before the Senate Appropriations Committee, having previously cleared the Senate Banking and Insurance Committee and an Appropriations subcommittee. Boyd’s bill has moved one step further, having cleared both the Insurance and Appropriations committees. It does, however, potentially face challenges in the Legislature’s other chamber, as House Speaker Chris Sprowls (R-Palm Harbor) has expressed opposition.

So, what does this all have to do with Russian oligarchs? Very, very little. But if that framing can help get this Legislature’s attention, it’s worth a try.

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Financial Regulation & Corporate Governance

Statement of R.J. Lehmann, Roundtable on Pandemic Risk

Written Testimonies & Filings Opening Statement of R.J. Lehmann Editor-in-Chief and Senior Fellow International Center for Law & Economics “Roundtable on Pandemic Risk” Hosted by Ranking Member French Smith . . .

Opening Statement of

R.J. Lehmann

Editor-in-Chief and Senior Fellow

International Center for Law & Economics

“Roundtable on Pandemic Risk”

Hosted by

Ranking Member French Smith and Members of

U.S. House Committee on Financial Services,

Subcommittee on Housing, Community Development, and Insurance

Congressman Smith, and Members of the Committee and Subcommittee,

My name is R.J. Lehmann, and I am editor-in-chief and senior fellow with the International Center for Law & Economics. ICLE is a nonprofit, nonpartisan research center that works to develop and disseminate academic output in the law & economics tradition, in order to build the intellectual foundation for rigorous, economically grounded public policy.

Two years into the COVID-19 pandemic, it is appropriate that Congress explore whether a more targeted and potentially permanent approach would be preferable to the ad hoc pandemic assistance programs like Paycheck Protection Program, which have directed trillions of dollars of federal relief to affected employers and employees. It is also reasonable to inquire what role, if any, should be played by the insurance industry, the sector traditionally tasked with responding to disaster.

There are almost certainly lessons to be learned from COVID, and there may well be a role to play for insurance companies, agents, and claims adjusters in any future pandemic program Congress might devise. But I want to raise a note of skepticism that insurance products generally—and business-interruption insurance, in particular—are really the best means to respond to the macroeconomic challenges raised by pandemics.

First, the capital that the global insurance and reinsurance industry would ever be willing to devote to the risk of pandemics would never come close to approaching the scale of the problem. Unlike governments, insurers and reinsurers cannot print money. To respond to a loss event like a pandemic, they would need to have those assets on hand. Any world in which the insurance industry had the resources to replace half of global GDP is a world in which people are buying far too much insurance.

Proposals like the Pandemic Risk Insurance Act (PRIA) tacitly acknowledge this limitation, which is why they would have the industry retain only de minimis risk of 5%. Obviously, that risk-share contribution would not significantly offset costs to the taxpayer, but it might be a worthy idea if the goal is to leverage the industry’s expertise and capacity in other ways.

Most frequently cited among these is that insurers know how to price risk. That is true and, in many contexts, assigning risk-weighted premia performs a valuable social function. In the context of the pandemic, for example, it is crucial that businesses’ liability and workers’ compensation insurance rates reflect risk, because that produces the price signals that offer incentives for businesses to adopt safer practices and avoid spreading infection to their customers or their employees. But it is not as clear that assigning pandemic-risk insurance rates according to risk would achieve a socially desirable goal. Indeed, if businesses like bars and restaurants, which are most exposed the risk of closure in the event of a pandemic, had to pay insurance rates that reflected their risk, they would, at the margin, be less likely to buy the coverage. It would undermine the entire purpose of the program if those businesses that need the protection the most would be least likely to afford it.

This question of take-up is particularly important when you remember that only about a third of businesses currently have business-interruption insurance, and that’s with a product that does not cover risks like pandemic. While adding pandemic coverage might make the product more attractive, it will certainly be more expensive, even if it’s subsidized. It would not be ideal to attach a relief program to aid businesses with the risk of pandemic to an insurance product that most businesses do not have.

It’s also notable that, unlike the terrorism insurance crisis in 2002, in which lenders were canceling financing of projects that weren’t insured for terrorism risk, by and large, we are not seeing something similar today—at least, not with business-interruption insurance, which has never covered pandemic risk. There are other insurance products, like events cancellation and production insurance for films and television shows, where there’s more evidence of some degree of market dislocation, and those might be areas more ripe for a targeted solution.

Finally, I would caution Congress to be humble in what it can project about future public-health emergencies. The next crisis may look nothing like the current one, and even the current one continues to surprise us. Early in 2020, I consulted with the major insurance trades on the proposal that ultimately became the Business Continuity Protection Plan (BCPP). At the time, we debated whether a program that offered three months of assistance would be exceedingly generous. When I testified before the Subcommittee on this topic in November 2020, vaccines were about to start rolling out and it seemed this all was coming to a close. There are good reasons to want a transparent and predictable set of rules, but it may be that ad hoc solutions designed in the moment to address the problem immediately before us, are the best that we can do.

With that, I look forward to your questions.

Read the full written testimony here.

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Financial Regulation & Corporate Governance

Amid COVID, Insurance Regulation Remains Profitable

Popular Media The COVID-19 pandemic hit state budgets particularly hard in 2020, with a $24.11 billion drop in tax revenue collected from 2019’s levels. But analysis of . . .

The COVID-19 pandemic hit state budgets particularly hard in 2020, with a $24.11 billion drop in tax revenue collected from 2019’s levels. But analysis of National Association of Insurance Commissioners (NAIC) data demonstrates that insurance regulation remained a profitable revenue source for the states, generating $3.29 billion in budgetary surpluses across the 50 states and the District of Columbia, up from $2.94 billion in 2019.

Read the full piece here.

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Financial Regulation & Corporate Governance

Transatlantic Data Flows Are Crucial to Global Financial Services

TL;DR Data is one of the pillars of the modern digital economy, but its value is contingent on its ability to flow around the globe in real time, permitting individuals and firms to develop new and novel insights and to operate at higher levels of efficiency and safety.


Data is one of the pillars of the modern digital economy, but its value is contingent on its ability to flow around the globe in real time, permitting individuals and firms to develop new and novel insights and to operate at higher levels of efficiency and safety.


Those data flows increasingly run into barriers when they seek to cross national borders. These often take the form of “data-localization” requirements to locate, store, and/or process data within national boundaries.


Data-localization policies are often framed as necessary to protect critical digital infrastructure and national-security interests, but they serve instead as trade barriers that hurt consumers more than they help. An examination of the impact on the financial services industry helps to illustrate the problem.

Read the full explainer here.

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Financial Regulation & Corporate Governance


Presentations & Interviews ICLE Editor-in-Chief and Senior Fellow R.J. Lehmann was interviewed by Fox 26 Houston in a segment about his recent tweet mapping the borders of the . . .

ICLE Editor-in-Chief and Senior Fellow R.J. Lehmann was interviewed by Fox 26 Houston in a segment about his recent tweet mapping the borders of the American South. The full interview is embedded below.

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Testimony of R.J. Lehmann to the Senate Banking Committee: The Case to Reform the NFIP

Written Testimonies & Filings Introduction Chairman Brown, Ranking Member Toomey, and Members of the Committee, My name is R.J. Lehmann, and I am a Senior Fellow with and Editor-in-Chief . . .


Chairman Brown, Ranking Member Toomey, and Members of the Committee,

My name is R.J. Lehmann, and I am a Senior Fellow with and Editor-in-Chief of the International Center for Law & Economics. ICLE is a nonprofit, nonpartisan research center that promotes the use of law & economics methodologies to inform public policy debates. Working with a roster of more than 50 academic affiliates and research centers from around the globe, we develop and disseminate academic output to build the intellectual foundation for rigorous, economically grounded policy.

I have been an active observer of the challenges facing the National Flood Insurance Program (NFIP) for 18 years. In my former life as a business journalist, I was from 2003 to 2011 the Washington bureau chief of two major trade publications covering the business of insurance. That stint included covering the 2004 and 2008 NFIP reauthorization debates and, of course, the devastating impact of Hurricane Katrina in 2005. In 2012, I co-founded the R Street Institute, where I remained until joining ICLE six months ago. Among my duties at R Street was running the Institute’s insurance policy research program, and I made NFIP reform a major part of my research focus.

I thank the committee for conducting this hearing, its first in four years on the topic of NFIP reauthorization. It has been nearly a decade since Congress last approved a long-term reauthorization of the NFIP. The program remains in need of structural reform, and the series of short-term extensions on which it has relied for the past four years leaves many parties—homeowners, business owners, builders, lenders, realtors, insurers, and insurance agents—without the clarity they need to make forward-looking decisions. One hopes Congress will be able to reach agreement this session on legislation that provides that clarity, while also making the adjustments needed to address the long-term challenges this program faces.

The past year has given us all an up-close view of how Americans respond when faced with the realization of remote and nominally “unforeseen” catastrophic risks. But, of course, the COVID-19 pandemic was not unforeseen at all. Public health officials and catastrophe modelers have long known that a viral contagion of this sort was not only possible, but inevitable. The 1918 influenza pandemic was within the lifetime of some Americans. Much more recently, another H1N1 influenza spread as a pandemic in 2009; we were merely fortunate that it did not prove to be terribly deadly. And we have in recent years seen other coronaviruses like SARS and MERS reach epidemic levels abroad.

Similarly, there is nothing unforeseen about the challenges facing the National Flood Insurance Program. It was established more than 50 years ago to provide coverage that private insurers would not; to reduce the nation’s reliance on post-hoc disaster assistance; to provide incentives for communities to invest in mitigation; and to be self-sustaining.

What is now clear is that the NFIP has not been—and, as currently structured, cannot be—self-sustaining. Since Hurricane Katrina, the program has been forced to borrow nearly $40 billion from the U.S. Treasury. Reforms passed as part of the Biggert-Waters Flood Insurance Reform Act of 2012 were intended to place the program on a path toward long-term fiscal sustainability by phasing out explicit premium subsidies and shifting more risk to the private insurance, reinsurance, and capital markets. But some of those reforms were scaled back or repealed almost immediately in the Grimm-Waters Act, passed in 2014. And even with $16 billion of the program’s debt erased by Congress in 2017, the NFIP remains $20.5 billion in debt to U.S. taxpayers as of the first quarter of Fiscal Year 2021,[1] with no feasible plan ever to repay that debt in full.

Post-hoc disaster spending also continues to grow, with more than 90 percent of all federally declared disasters involving floods. And while the program has provided incentives for mitigation, by making cheap flood insurance available, it also has played a role encouraging development in flood-prone and environmentally sensitive regions. Moreover, due to the looming threat of climate change—which we know will drive both rising sea levels and more frequent and more severe precipitation events—it is more crucial than ever that Congress address the NFIP’s structural issues and the ways to correct its perverse incentives for where and how Americans live.

Structural Problems of the NFIP

At its inception in 1968, the NFIP was not designed as a risk-based program. Property owners in participating communities were charged flat rates, irrespective of the level of flood risk their properties faced. That design was intentional, as the overarching goal was to encourage take-up, particularly by residents of the riskiest communities.

Shortly thereafter, in 1973, the program was redesigned to account for risk with the introduction of Flood Insurance Rate Maps (FIRM) that assign properties to various risk-rated zones and assess premium rates commensurate with the flood risk faced by that zone. Federally related mortgages on homes in high-risk zones that face a greater than 1 percent annual chance of flooding—also known as Special Flood Hazard Areas or 100-year flood zones—are required to purchase flood insurance.

But exceptions to risk-based ratings were built into the FIRM process from early on. Properties that joined the program prior to the introduction of rate maps could continue to pay non-risk-based rates through what are known as “subsidized” policies, which historically were assessed rates that were only 45 percent of their true actuarial liability.[2]

Moreover, while the Federal Emergency Management Agency (FEMA) is required by statute to revise and update all its maps at least once every five years, mapping changes do not force rate changes for existing structures. These are treated as “grandfathered” properties, which continue to pay the rates assigned when their community joined the program or when its prior rate designation was finalized.

As a result, the NFIP has always taken in less in policyholder premiums than actuarial assessments would recommend. In the years just prior to Biggert-Waters, from 2002 to 2013, the Government Accountability Office (GAO) estimates the program collected $11 billion to $17 billion less in premiums than was actuarially prudent.[3]

Biggert-Waters and the subsequent Homeowner and Flood Insurance Affordability Act of 2014 (HFIAA) placed business properties and second homes on a glidepath toward actuarial rates, with annual premium increases that are capped at 25 percent, while rate increases on subsidized primary homes are capped at 15 percent. Biggert-Waters would have placed grandfathered properties on a glidepath to actuarial soundness with a rate cap of 20 percent, but HFIAA amended that provision such that it only takes effect if a grandfathered property’s map changes again in the future. If it does, the grandfathered property would see rate increases that likewise would be capped at 15 percent.

Were the NFIP actuarially sound, it would have the resources to sustainably administer the program—including marketing and claims-adjustment expenses—and pay all expected claims that fall within the ordinary distribution of potential outcomes. But the NFIP would still experience—and in recent years, has experienced—outsized claims events like Hurricane Katrina, Superstorm Sandy, and Hurricane Harvey that fall in the tail end of the probability distribution. Indeed, those three events alone account for the overwhelming majority of the $40 billion the program has had to borrow since 2005.

Since Hurricane Katrina, the NFIP has made $5.06 billion in interest payments to service its debt to the Treasury but has managed to repay just $2.8 billion of principle. It is, by all accounts, completely infeasible that it will ever repay its debt in full. Indeed, in 2017, the Congressional Budget Office (CBO) estimated that, under its existing structure, the NFIP is expected to post an average annual loss of $1.4 billion.[4]

That the program has proven structurally unsustainable was foreseen by its creators. In 1966, Lyndon Johnson’s Presidential Task Force on Federal Flood Control Policy warned Congress that creating a federal flood insurance program “in which premiums are not proportionate to risk would be to invite economic waste of great magnitude.”[5]

Congress could assess that the benefits to homeowners and business owners in flood-prone regions merit the cost of subsidies. Even if that were the determination, however, the program’s existing structure largely functions not through express taxpayer subsidies, but by enabling cross-subsidies from inland NFIP policyholders to those in coastal regions. The CBO has found that 85 percent of NFIP properties exposed to coastal storm surge (properties classified as “Zone V”) pay below full risk-based rates. Altogether, 69 percent of Zone V properties are grandfathered, 29 percent are subsidized, and 13 percent are both grandfathered and subsidized.[6]

In addition to subsidies flowing from inland policyholders to coastal policyholders, NFIP subsidies broadly flow from higher-income areas to lower-income areas. In 2013, the GAO reported that 29 percent of subsidized policies were in counties in the top decile of median household income and 65 percent were in counties among the top three deciles, while just 4 percent were in the bottom decile and 10 percent in the bottom three deciles.[7]

Should Congress determine that it does expressly want to subsidize property owners in flood-prone regions, those subsidies should properly flow directly from the taxpayers. Laying the burden on inland and lower-risk NFIP policyholders discourages take-up of flood insurance, at the margin, when the goal should be much broader take-up to close the protection gap. Moreover, to the extent that subsidies are necessary to protect at-risk populations from displacement, it would be proper to transition to an income-based voucher system, rather than the existing system of subsidies and grandfathering tied to when the property joined the NFIP.

Rising Waters, Rising Risks

Over the past 50 years, the NFIP has helped to shape the landscape, with significant impact on the country’s built environment. In the first four decades after its passage, from 1970 through 2010, the number of Americans living in coastal counties grew by 45 percent and now comprises more than half the U.S. population.[8] Nowhere is this shift more apparent than in my state of Florida. At the beginning of World War II, Florida was the least-populated state in the Southeast. As the recent 2020 U.S. Census figures confirmed, it is now the third most populated state in the nation. The NFIP was not the sole driver of that growth, of course. Air-conditioning also played a part. But by providing guaranteed and affordable coverage for the most common catastrophe risk facing property owners in a place like Florida, the NFIP has been a key enabler of the mass conversion of wetlands and barrier islands—nature’s built-in defenses against tropical storms and flooding—into acres and acres of manicured lawns and suburban tract housing.

But even as Americans spent much of the past half-century moving to areas at greater risk of catastrophic flooding, we have begun to see how anthropogenic climate change will make that problem much worse. Global sea levels rose by 2.6 inches from 1993 through 2014 and are projected to continue to rise by an average of one-eighth of an inch per year for the foreseeable future.[9] Projections for the 21st century anticipate sea level rise of between 20 inches, should we manage to make sharp and immediate cuts to global carbon emissions,[10] and six and a half feet, should the Antarctic ice sheet break up.[11]

And yet, even facing these challenges, there has been no slowdown in Americans preferring to build and live in flood-prone areas. A 2018 analysis of FEMA records conducted by Governing magazine found that 15 million Americans lived in 100-year floodplains, where current rules for federally related mortgages require the purchase of flood insurance. That was a 14 percent increase from the turn of the 21st century, compared with 13 percent population growth in all other zones.[12] Even more strikingly, a 2019 report by ClimateCentral looked at areas projected to have a 10 percent risk of coastal flooding by 2050. They found that, in eight coastal states, there were more homes built within this project 10-year flood zone than in all other areas.[13] Development was twice as fast in the 10-year flood zone than outside of it in Delaware, Mississippi, New Jersey, and Rhode Island, while in Connecticut, it was three times as fast.

Losing land to the sea is not an entirely new phenomenon, of course. Sen. Kennedy’s home state of Louisiana has lost more than 2,000 square miles of land since the 1930s.  But the scale of land loss we may now face, combined with the surge in development in flood-prone areas, is new. In 2016, a piece in the journal Nature Climate Change overlaid anticipated population growth with projected sea-level rise of roughly three feet to six feet, finding that between 4.2 and 13.1 million Americans would be displaced by inundation.

The changing nature of flood risk makes it even more crucial that FEMA, as the NFIP’s administrator, regularly update its Flood Insurance Rate Maps to keep up with changes on the ground. The evidence, however, is that the agency is failing to do that. A 2017 Department of Homeland Security Inspector-General’s report found that FEMA was up to date on just 42 percent of the NFIP’s flood hazard miles, far short of a goal of 80 percent set in 2009, and that the agency had not properly ensured that “mapping partner quality reviews are completed in accordance with applicable guidance.”[14] In 2017, the CBO found that, of the 166 counties that produce more than $2 million in average annual flood claims, half were using maps that were more than five years old.[15]

Sea-level rise and other impacts from climate change threaten to radically transform how we must deal with the risk of flooding. A 2019 study in Nature Communications had a grim projection about the frequency and severity of flooding and coastal storm surge: By the end of this century, today’s 100-year flood events in the Southeast and Gulf Coast will be expected every 1 to 30 years. Today’s 100-year events in New England and the mid-Atlantic can be expected every single year.[16]

It is inevitable that, in at least some locations, we will have to consider pulling back from the coasts and moving Americans to higher ground. But an important first step is to stop making the problem worse.

Baby Steps Toward Managed Retreat

“Managed retreat” is a controversial phrase, both because it connotes surrender in the battle against climate change and because it is taken to mean a radical realignment in the way we live. And yet, in some respects, managed retreat is longstanding policy. It is seen most clearly in FEMA’s Hazard Mitigation Grant Program (HMGP), the Flood Mitigation Assistance (FMA) Grant Program, and Pre-Disaster Mitigation (PDM) Program, all of which execute buyouts of flood-prone properties, which are then demolished, and the vacated land dedicated in perpetuity to open space.

While buyouts are likely to continue to be part of the solution to rising flood risk, there are serious questions about whether they could ever scale anywhere close to meet the scope of the problem. A 2019 report from the Natural Resources Defense Council found that, at the pace FEMA executed buyouts in the 30 years between 1989 and 2019, it would only be able to buy out another 115,000 properties by the end of the 21st century.[17] For comparison, current projections are that as many as 13 million properties will be completely inundated by the year 2200.

Rather than tearing down the flood-prone properties that already exist, a more immediate approach would be to remove the incentives to build new ones. I authored a report last year that proposed doing so directly—by barring any new construction in 100-year floodplains from NFIP eligibility. Based on my review of NFIP claims data, had this policy been in place starting in 1980, the program’s payouts between 1990 and 2019 would have been roughly 13 percent smaller, representing $16.5 billion in savings.[18]

What I could not quantify in my research, but which is likely even more crucial to the pressing challenge of climate adaptation, is how many of those severely flood-prone properties would not have been built in the first place, but for guaranteed NFIP coverage. In some cases, property owners in such areas might turn to the emerging private market for flood insurance, but they would be assessed risk-based premiums that, in many cases, likely would be prohibitive.

Of course, an additional benefit of this approach is that, unlike phasing out subsidies, it does not lay any new burden on existing policyholders. Similar approaches can be found in the Coastal Barrier Resources System (CBRS), a 37-year-old program that bars federal subsidies to development across a 3.5-million-acre zone of beaches, wetlands, barrier islands, and estuaries along the Atlantic Ocean, Gulf of Mexico, and the Great Lakes. Likewise, in Florida, the Legislature adopted a similar rule in 2015 that bars the state-sponsored Citizens Property Insurance Corp. from writing coverage for new construction located seaward of the state’s Coastal Construction Control Line.[19]

But it is not enough simply to tell people where they cannot build; we must also tell people where they can. Many areas remain gripped by a serious housing affordability crisis caused by stringent land-use controls that make it excessively difficult to build new housing in places where people wish to live.

Therefore, in addition to the “stick” of removing the NFIP’s incentives to build in flood-prone areas, I propose an additional “carrot” of federal incentives for states that liberalize their land-use policies in areas of lowest flood risk.

Specifically, the Stafford Act currently requires that, when the federal government provides post-disaster relief to repair, restore, or replace damaged facilities, state, and local governments are responsible to pick up 25 percent of the cost. I propose that providing for dense housing in the lowest-risk flood zones—those classified as 1-in-500-year zones, or Zone X and Zone C in the current mapping system—would enable states to “buy down” the local cost share. For example, if a state were to abolish single-family zoning in the lowest-risk flood zones—e.g., allowing construction of accessory dwelling units and up to four-family homes, by right—the federal government’s cost-share for post-disaster recovery would rise to 80 percent or even 85 percent. This would begin the process of ensuring that, as rising seas force more Americans to move to higher ground, there will be sufficient housing stock to absorb them.

Other Considerations

  • I mentioned earlier that it would be proper to transition the current subsidies to an income-based voucher system. An important element of such a system is that policyholders should be made aware of the full risk-based cost of flood insurance. The same applies to current subsidized and grandfathered policyholders. Any NFIP policy with rates that are less than the full risk-based cost should disclose to policyholders what that cost would be. Similarly, a complete flood history should be made available to buyers as part of all real estate closings.
  • Many of the implementation questions that surrounded Biggert-Waters’ provisions permitting private flood insurance to satisfy mandatory purchase requirements have, in recent years, been resolved by state authorities and the federal lending regulators. One additional point of clarification this committee could provide is to determine whether consumers who move from the NFIP to private flood insurance and then maintain continuous coverage can later return to the NFIP at the same rate as if they had remained with the program all along. This would protect consumers if, for example, after switching to a private policy, the private insurer raised rates or exited the market.
  • Some have proposed forgiving the NFIP’s current $20.5 billion debt to the Treasury. Should Congress opt to do so, the program’s existing $30.425 billion borrowing authority would be far too large to offer any meaningful check. Congress should instead simply set the borrowing authority cap 1 percent of the NFIP’s total insurance in-force. Based on its current total of $1.3 trillion, this would mean the NFIP could borrow up to $13 billion without needing further authorization.

With that, I would be glad to answer any of the Committee’s questions.


[1] “The Watermark Fiscal Year 2021, First Quarter, Volume 13,” Federal Emergency Management Agency, p. 2.

[2] Bill Jones, “Biggert-Waters Flood Insurance Reform Act of 2012 Summary,” Nebraska Dept. of Natural Resources, February 2013.

[3] “Forgone Premiums Cannot Be Measured and FEMA Should Validate and Monitor Data System Changes,” Government Accountability Office, GAO-15-111, Dec. 11, 2014.

[4] “The National Flood Insurance Program: Financial Soundness and Affordability,” Congressional Budget Office, Sept. 1, 2017, p. 1.

[5] Gary William Boulware, “Public Policy Evaluation of the National Flood Insurance Program (NFIP),” doctoral dissertation, University of Florida, December 2009, p. 14.

[6] “The National Flood Insurance Program: Financial Soundness and Affordability,” Congressional Budget Office, Sept. 1, 2017, p. 1.

[7] “Flood Insurance: More Information Needed on Subsidized Policies,” Government Accountability Office, July


[8] Ross Toro, “Half of US Population Lives in Coastal Areas (Infographic),” LiveScience, March 12, 2012.

[9] “Is sea level rising?”, U.S. National Oceanic and Atmospheric Administration, Feb. 26, 2021.

[10] Carling C. Hay et al., “Probabilistic reanalysis of twentieth-century sea-level rise,” Nature 517 (Jan. 14, 2015), pp. 481–84.

[11] Robert E. Kopp et al., “Evolving Understanding of Antarctic Ice-Sheet Physics and Ambiguity in Probabilistic Sea-Level Projections,” Earth’s Future 5 (Dec. 13, 2017), pp. 1217–33.

[12] Mike Maciag, “Analysis: Areas of the U.S. With Most Floodplain Population Growth,” Governing, August 2018.

[13] “Ocean at the Door: New Homes and the Rising Sea,” ClimateCentral, July 31, 2019.

[14] “FEMA Needs to Improve Management of Its Flood Mapping Programs,” U.S. Department of Homeland Security Office of the Inspector-General, Sept. 27, 2017, p. 3.

[15] “Age of Flood Maps in Selected Counties That Account for Most of the Expected Claims in the National Flood Insurance Program: Supplemental Material for The National Flood Insurance Program: Financial Soundness and Affordability,” Congressional Budget Office, November 2017, p. 3.

[16] Reza Marsooli et al., “Climate change exacerbates hurricane flood hazards along US Atlantic and Gulf Coasts in spatially varying patterns,” Nature Communications 10:3785 (Aug. 22, 2019).

[17] Anna Weber and Rob Moore, “Going Under: Long Wait Times for Post-Flood Buyouts Leave Homeowners Underwater,” Natural Resources Defense Council, Sept. 12, 2019.

[18] R.J. Lehmann, “Do No Harm: Managing Retreat By Ending New Subsidies,” R Street Institute, February 2020.

[19] Jane Smith and Michelle Quigley, “Along the Coast…A line in the sand,” The Coastal Star, Aug. 30, 2017.

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Financial Regulation & Corporate Governance

Gov. DeSantis’ unconstitutional attack on social media

Popular Media Fresh off his second-place finish — behind only former President Donald Trump — in the presidential straw poll at the Conservative Political Action Conference in Orlando, Gov. . . .

Fresh off his second-place finish — behind only former President Donald Trump — in the presidential straw poll at the Conservative Political Action Conference in Orlando, Gov. Ron DeSantis’ top priority heading into this year’s legislative session is custom-fit to appeal to the CPAC crowd: going after Big Tech social-media companies for their alleged anti-conservative bias.

Read the full piece here.

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Innovation & the New Economy