At worst, TRIA may actually increase the costs of a terrorist attack. By making available under‐priced insurance, property owners and developers have a reduced incentive to construct and rehabilitate structures to better withstand a terrorist attack.
The Congressional Budget Office found that the existence of TRIA appears “to dampen the inclination of firms to relocate their operations away from high‐risk areas.” These increased potential property losses, due to TRIA’s perverse incentives, do not account for the increased potential for loss of life from encouraging individuals to remain working or living in high‐risk areas.
Insurance is fundamentally about the pooling and sharing of risk. It is not, however, the only vehicle for doing so. This is especially true in the commercial real estate market, the sector most affected by TRIA.
The most likely physical targets of TRIA will be either public buildings or trophy commercial properties. In the case of public buildings, it would be cheaper for the public to directly backstop those properties, rather than rely on insurance. In the case of private commercial properties, a Real Estate Investment Trust structure provides a ready avenue for spreading the risk of losses that may result from terrorism.
And of course, most trophy commercial properties are owned by publicly traded corporations who by their very nature spread the risk to their shareholders.
The existence of TRIA does little more than privilege some forms of risk‐pooling over others. It shouldn’t be the role of government to favor one industry over another.
It’s occasionally argued that we need TRIA because terrorism risk is “special” in that it’s often geographically concentrated, rare and not subject to the law of large numbers, and that the costs can be “extreme.” None of these arguments are particularly compelling, especially when compared with natural disasters. Despite the geographic concentration of hurricanes, the private sector appears well able to provide homeowners’ insurance.
In fact, natural disasters illustrate the industry’s ability to manage and absorb large losses. The losses from hurricanes Katrina and Andrew, and the Northridge earthquake, were all comparable to the losses from 9/11, so there is nothing particularly special about the level of terror damage. If anything, 9/11 did less to threaten the solvency of the insurance industry than did Andrew or Katrina. And of course it should not be the role of the federal government to guarantee the solvency of private companies, whether they are in the insurance industry, the auto industry or investment banking.
The insurance industry’s initial reaction to 9/11 was the correct one: have states allow for the exclusion of terrorism coverage in a manner similar to damages resulting from wars. The problem was that California, Florida, Georgia, New York and Texas would not provide such exclusions. While I am generally reluctant to see pre‐emption of state insurance laws, the creation of TRIA has dragged the federal government into this field, and therefore a national solution must be found.
A simple fix would be to have the federal government allow for an exclusion of terrorism coverage nationwide. These few states are significant enough to form their own voluntary risk‐pools. Both California and New York could easily form within state terrorism risk pools without federal involvement or backing.
Congress would best serve the public interest by allowing TRIA to expire. Short of that, states and insurance companies should be allowed to opt out of having to both provide terrorism risk insurance and having to participate in any recapture of taxpayer losses.