This report from the American Bar Association's Standing Committee on Law and National Security, Section on State & Local Government Law, and the Section of Administrative Law and Regulatory Practice evaluates the legal authorities available to meet the aftermath of a natural disaster or other national emergency. The report examines Constitutional authority, the role of the military, and the involvement of private sector groups.
"This report, which will be updated as events warrant, discusses the following:
Medicaid's rules on eligibility, benefits, and financing in the context of current questions and issues raised by Hurricane Katrina.
Recent state actions in response to Medicaid issues raised by the hurricane.
Federal Medicaid waiver authority, including information on current activity in this area and the New York Disaster Relief Medicaid waiver granted in response to the September 11 terrorist attacks.
Current federal legislation related to Medicaid and Hurricane Katrina relief efforts."
"The key emergency management and homeland security statutes for the state of California include the Emergency Services Act, the Disaster Recovery Reconstruction Act and the Disaster Assistance Act. These statutes allow the governor to declare an emergency, provide funds to small businesses and residents for disaster recovery, plan for and mitigate the effects of disasters, and establish a process for the continuation of government should gubernatorial or legislative vacancies occur as the result of a disaster. Although California is not a member of the Emergency Management Assistance Compact the legislature has enacted intrastate mutual aid agreements; the governor has authority to enter into interstate agreements. Other statutes address issues such as disaster dog teams, state employees volunteering for emergency service and agricultural terrorism."—Summary.
"To a considerable extent, state statutory authorities appear to be relatively uniform. All state statutes provide considerable discretionary authority to the governor in emergency situations. Also, since federal law requires or encourages certain actions, all states have enacted similar laws in some areas, such as the establishment of state and local entities with responsibility for hazardous material or chemical incidents or the acceptance of federal disaster assistance. Some differences
exist among the state authorities, such as the types, amount, and conditions under which aid is to be provided to disaster victims. Also, some states have enacted provisions to ensure that nonfederal funds are made available for preparedness or recovery, while others rely upon federal sources, with state funds authorized to meet cost share requirements."—Summary.
+Bea, Keith, Specialist, American National Government, Government and Finance Division & Henry Hogue, Analyst, American National Government, Government and Finance Division, Congressional Research Service (CRS), FEMA Reorganization Legislation in the 109th Congress (September 1, 2006) (PDF — 189KB)
"Members of Congress have introduced legislation in both the House and Senate to alter federal emergency management organizational structures and responsibilities, amend authorities that guide federal action, impose emergency management leadership qualification requirements, and make other changes. The proposals are based upon investigations conducted on the role of the Federal Emergency Management Agency (FEMA) and other entities in the response to Hurricane Katrina in the fall of 2005.
"Some observers reduce the matter to one basic question: 'Should FEMA remain within the Department of Homeland Security (DHS), or should the agency regain the independent status it had before the creation of DHS?' The issue, however, is more complex than just one of organizational placement."—Summary.
The field of all-hazards management is beset by a plethora of local, state, and federal statutes and regulations implemented by a wide array of civilian and military agencies at various levels of government. Both in practice and in academia, the emphasis is too often on the differences and tensions between emergency management and homeland security, between civilian and military management authority, and between federal and other levels of government. This article provides an analytic framework for discovering the common constitutional roots among them, by integrating phases in the disaster management cycle with core constitutional functions, to create a "legal GIS system." This matrix can be a useful means for mapping sources of potential conflict and thus identifying areas in need of proactive, cooperatively oriented law reform. —Abstract.
"Hurricane Katrina revealed fundamental problems with our nation's ability to respond to natural disasters. Not only did Katrina overwhelm governments at all levels in their abilities to respond to the disaster, but it also revealed their inadequate emergency preparation and response plans. There was a failure among local, state and federal levels to effectively optimize assistance and resources coming from other states and the federal government.
"This paper advocates an amended Stafford Act to include three solutions that are crucial to strengthening national preparedness for future disasters. First, local jurisdictions and states should be required to develop comprehensive disaster preparedness and response plans, consistent with a national framework, that enable them to effectively manage complex disasters. Second, the federal government needs to harmonize its disaster-relief infrastructure and consolidate natural emergency preparedness and response functions in the Federal Emergency Management Agency within the Department of Homeland Security. Finally, the Stafford Act should include a contingency plan for a catastrophe so large it renders traditional emergency management impracticable.
"While these structural changes for national preparedness can be implemented by executive order as governmental reports and studies have suggested, this paper stresses the importance of enacting these recommendations in legislation. The Stafford Act is the touchstone of federal disaster relief. Updating the Stafford Act to include a national framework for disaster response, the federal infrastructure for disaster management under the leadership of DHS, and the framework for the nation's response to catastrophic incidents, will achieve clarity and permanency for all parties involved. Updating the Act as suggested will ensure that the country shall be primed and prepared for future disasters."—Abstract.
"At the core of the set of challenges that confront national, state, and local government officials concerning homeland security national preparedness public policy are a set of assumptions, upon which current and evolving policies are based, that are suspect if not fatally flawed. The policy outcomes resulting from these faulty assumptions (and facilitated by hindering institutional pathologies, misguided policies, and bad policy instruments) have left the nation less prepared than is possible had forward-thinking, aggressively applied modern public management models been used as the foundation upon which national preparedness could be established. The assumptions brought into focus in this article are:
"1. There is an idealized level of national preparedness; achieving a prescribed level of preparedness to respond to events of national significance, whether man-made or natural in origin, is possible based on current or foreseeable resource levels.
"2. The federal government is obliged to direct the development of national preparedness policy to ensure that state and local governments are working toward policy compliance and are providing full accountability for grant funds.
"3. Current homeland security public policy is coherent, embraces an all-hazards
approach to national preparedness and reflects the comprehensive involvement
of state and local governments in its development, deployment, and
implementation.
"After a brief discussion of research methodology, this article traces the evolution of national preparedness policies and describes the institutional pathologies and policy instruments that have inhibited national preparedness. The next section provides analysis related to the research and an explanation of why the assumptions identified above are flawed. Finally, recommendations are offered that might allow the next administration and those with public safety, emergency management, and homeland security responsibilities at the state and local level insights into building community resilience and governance capacity that raises preparedness to as high a level as possible." —Introduction.
"Policymakers fight over bureaucratic structure because it helps shape the legal interpretations and regulatory decisions of agencies through which modern governments operate. In this article, we update positive political theories of bureaucratic structure to encompass two new issues with important implications for lawyers and political scientists: the implications of legislative responses to a crisis, and the uncertainty surrounding major bureaucratic reorganizations. The resulting perspective affords a better understanding of how agencies interpret their legal mandates and deploy their administrative discretion.
"We apply the theory to the creation of the Department of Homeland Security. Two principal questions surrounding this creation are (1) why the president changed from opposing the development of a new department to supporting it and (2) why his plan for such a department was far beyond the scope of any other existing proposal. We argue that the president changed his mind in part because he did not want to be on the losing side of a major legislative battle. But more importantly, the president supported the massive new department in part to further domestic policy priorities unrelated to homeland security. By moving a large set of agencies within the department and instilling them with new homeland security responsibilities without additional budgets, the president forced these agencies to move resources out of their legacy mandates. Perversely, these goals appear to have been accomplished at the expense of homeland security.
"Finally, we briefly discuss more general implications of our perspective: first, previous reorganizations (such as FDR's creation of a Federal Security Agency and Carter's creation of an Energy Department) also seem to reflect presidential efforts to enhance their control of administrative functions - including some not directly related to the stated purpose of the reorganization; and, second, our analysis raises questions about some of the most often-asserted justifications for judicial deference to agency legal interpretations." —Abstract.
+Copeland, Claudia, Specialist in Resource and Environmental Policy, Resources, Science, and Industry Division, Conrgessional Research Service (CRS), Terrorism and Security Issues Facing the Water Infrastructure Sector CRS Report for Congress, RL 32189) (Updated July 28, 2008) (PDF — 147K)
"Damage to or destruction of the nation's water supply and water quality infrastructure by terrorist attack or natural disaster could disrupt the delivery of vital human services in this country, threatening public health and the environment, or possibly causing loss of life. Interest in such problems has increased greatly since the September 11, 2001, terrorist attacks in the United States.
"Across the country, water infrastructure systems extend over vast areas, and ownership and operation responsibility are both public and private, but are overwhelmingly non-federal. Since the attacks, federal dam operators and local water and wastewater utilities have been under heightened security conditions and are evaluating security plans and measures. There are no federal standards or agreed upon industry practices within the water infrastructure sector to govern readiness, response to security incidents, and recovery. Efforts to develop protocols and tools are ongoing since the 2001 terrorist attacks. This report presents an overview of this large and diverse sector, describes security-related actions by the government and
private sector since September 11, and discusses additional policy issues and
responses, including congressional interest.
"Policymakers have been considering a number of initiatives, including enhanced
physical security, better communication and coordination, and research. A key issue
is how additional protections and resources directed at public and private sector
priorities will be funded. In response, Congress has provided $794 million in
appropriations for security at water infrastructure facilities (to assess and protectfederal facilities and support security assessment and risk reduction activities by nonfederal facilities) and passed a bill requiring drinking water utilities to conduct
security vulnerability assessments (P.L. 107-188). When Congress created the Department of Homeland Security (DHS) in 2002 (P.L. 107-297), it gave DHS responsibilities to coordinate information to secure the nation's critical infrastructure, including the water sector. Under Homeland Security Presidential Directive-7, the Environmental Protection Agency (EPA) is the lead federal agency for protecting drinking water and wastewater utility systems.
"Recent congressional interest has focused on two legislative issues: (1) security
of wastewater utilities, and (2) whether to include water utilities in chemical security
regulations implemented by DHS. In the 109th Congress, the Senate Environment and Public Works Committee approved legislation to encourage wastewater treatment works to conduct vulnerability assessments and develop site security plans(S. 2781), but there was no further action on this bill. Similar legislation has been introduced in the 110th Congress (S. 1968). Also in the 110th Congress, bills to extend DHS's Chemical Facilities Anti-Terrorism Standards are being considered. One bill (H.R. 5533) would preserve an existing exemption for water utilities, while another (H.R. 5577) would include them in the scope of DHS security rules. Continuing attention to these issues is possible, along with interest in how the federal government coordinates its own activities and communicates policies and
information to the water infrastructure sector."
"In the wake of Hurricane Katrina, Congress amended the Insurrection Act of 1807. The Act enables the President to deploy the military 'to suppress, in any State, any insurrection, domestic violence, unlawful combination, or conspiracy.' The amended Act expands the language of the original Act to include natural disasters, epidemics, or other serious public health emergencies, terrorist attacks or incidents, or other conditions. Opponents of the amendment, most notably all fifty governors, criticize the amendment as a presidential power grab aimed at suppressing the power of the states and increasing the role of the military in domestic affairs.
This paper argues that the amendment to the Insurrection Act does not affect the President's existing powers to deploy the military domestically. Instead, this paper argues that the amendment merely clarifies the situations that justify the use of the military to respond to domestic disorder. An analysis of the historical use of the Act and the Act's language indicates that justification for presidential action prior to the amendment focused on the extent, rather than the source of the domestic disorder. The changes made in October of 2006 provide explicit examples of situations that may lead to events of public disorder justifying the President's invocation of the Act's authority. In addition, political and historical limitations, along with limitations in the Act itself, will restrict presidential abuse of the power. Thus, the uproar over the recent changes to the Insurrection Act and the fears of martial law are unfounded."—Abstract.
"This Article analyzes how the government's blame of the Posse Comitatus Act (PCA) for its late response to the Hurricane Katrina disaster was misplaced. Part I starts with a brief history of the military's role in domestic law enforcement and chronicles how, throughout history, standing armies have crept into civilian law enforcement. It discusses how for centuries, governments have treated their standing armies as necessary evils - depending on the military for national defense while at the same time fearing its power to oppress if improperly unleashed. In fact, the encroachment of federal troops on the voting rights of the Reconstruction South was the impetus for the passage of the Posse Comitatus Act (PCA) in 1878.
"Part II teases out the convoluted process of analyzing military action under the PCA. It lays out how courts interpret the statute as well as the constitutional, Congressional and common law exceptions to the PCA. Part III applies the PCA to the situation in New Orleans, concluding that the PCA was not implicated because the military's role was to provide food, water, medical care and transportation out of the city and not to enforce the law. This section also details the various sources of authority that would have permitted the use of the military in a law enforcement capacity in New Orleans immediately after Katrina.
"Lastly, the Conclusion discusses what the PCA means today and whether we still have a need for such a law. The author concludes that we do need a PCA-like law, but we need one that is more potent. We have traversed through a cycle of authority that gradually progresses from absolute civilian control of the military to virtual control of the military and then back again. We are on the upswing of this cycle, and we need a PCA with teeth in order to protect us from repeating history and from ending this chapter of increasing military authority in disaster."—Abstract.
This set of audio files contains presentations by Adam Doerr, Opening Remarks; Ben Depoorter: "Political Externalities & the Response of Government to Disasters"; Richard Schmalbeck and Ellen Aprill: "Disaster Relief, Tax Policy, and the Federal Action Imperative";
Commentaries by Arti Rai and Lawrence Zelenak;
Jim Rossi: "State Executive Lawmaking in Crisis" Presentation and Q&A; Keynote Speaker: Dr. Robert Kadlec; "Risk Assessment and the Hazards of Hindsight" Discussion and Q&A with Matthew Adler, Douglas Kysar, and Thomas McGarity.
"FEMA should be commended for formulating the "Federal Response Plan" after its experiences with Hurricane Hugo and Loma Prieta. The Plan provided the framework fo numerous Federal agencies' response to Hurricane Andrew. However, Andrew demonstrated that the Plan needs substantial refinements to deal with a disaster of such extraordinary magnitude, particularly in the first few days when broad assistance was so vitally needed but slow in arriving. Several such refinements come directly from lessons learned with Hugo and Loma Prieta, described in the FEMA report of May 1991 on this subject. That report specifically commented that the Federal Government may be the principal responder when a catastrophic disaster overwhelms the State and local governments' ability to respond. FEMA management failed to systematically follow up on the more important problem areas described in that report.
"A key lesson is the need to clarify or expand legal authority for Federal agencies to act quickly, instead of waiting for specific requests for aid from the States. In 1991 FEMA officials proposed legislation that would have somewhat expanded Federal authority, but they gave up when the proposal was not approved for submission to Congress. The weakness of the "Federal Response Plan" and Federal agencies' performance in south Florida are caused primarily by the perception of inadequate authority on such a fundamental issue involving its capability to perform promptly in a catastrophic disaster situation. This issue takes on even more importance in a situation such as Andrew, when many State and local officials could not identify their requirements for Federal assistance, further contributing to victims' suffering.
"We believe this unresolved question of authority would lead FEMA officials to approach the next catastrophic disaster largely in the same way they did Hurricane Andrew, with consequent delay in meeting victims' immediate needs. Mindful that the next hurricane season is but six months away, we present numerous findings and recommendations for improving the Federal response. ...."—Executive Summary.
"In fall 2005, Hurricanes Katrina, Rita, and Wilma devastated areas along much of the Gulf Coast, resulting in greater demand for food stamps by millions of Gulf Coast State residents and evacuees.
"During disasters, USDA delivers emergency food assistance in two ways. Initially, emergency food commodities are provided to shelters, to other mass feeding sites, and directly to households when normal commercial channels of food distribution may be disrupted. USDA also issues emergency food stamps through the Disaster Food Stamp Program (DFSP), an extension of the regular Food Stamp Program. Under the DFSP, eligibility requirements are temporarily relaxed so that benefits can be quickly provided to households that may not ordinarily qualify for food stamps but suddenly need food assistance.
"The Federal response to the disasters has received much attention; information about food stamp use will help provide a more complete picture of the use of public assistance both during and after the hurricanes. To provide this information, we examined the effect of the hurricanes on food stamp caseloads and benefits issued.
"One effect of the hurricanes was a dramatic spike in both Food Stamp Program caseloads and benefits issued. In November 2005, 29.7 million people received food stamps, the largest number ever to receive food stamps in a single month and about 4 million—or 15 percent—more than just 3 months earlier." —Report Summary
Links to report summary and full report in PDF format.
+Holmberg, Scott D., Christine M. Layton, George S. Ghneim & Diane K. Wagener, Research Triangle Institute International, State Plans for Containment of Pandemic Influenza (Policy Review) Emerging Infectious Diseases, v.12, no.9 (September 2006)
"This review assesses differences and similarities of the states in planning for pandemic influenza. We reviewed the recently posted plans of 49 states for vaccination, early epidemic surveillance and detection, and intraepidemic plans for containment of pandemic influenza. All states generally follow vaccination priorities set by the Advisory Committee on Immunization Practices. They all also depend on National Sentinel Physician Surveillance and other passive surveillance systems to alert them to incipient epidemic influenza, but these systems may not detect local epidemics until they are well established. Because of a lack of epidemiologic data, few states explicitly discuss implementing nonpharmaceutical community interventions: voluntary self-isolation (17 states [35%]), school or other institutional closing (18 [37%]), institutional or household quarantine (15 [31%]), or contact vaccination or chemoprophylaxis (12 [25%]). This review indicates the need for central planning for pandemic influenza and for epidemiologic studies regarding containment strategies in the community."—Abstract.
"This Implementation Plan for the National Strategy for Pandemic Influenza further clarifies the roles and responsibilities of governmental and non-governmental entities, including Federal, State, local, and tribal authorities and regional, national, and international stakeholders, and provides preparedness guidance for all segments of society. The Plan addresses the following topics:
U.S. Government Planning and Response
International Efforts and Transportation and Borders
"Public health law has been a quintessentially public law field, centered around a system of administrative agencies. In some respects, the field is moving even closer to the core of governmental functions. Since September 11, the 2001 anthrax attacks and Hurricane Katrina, the conceptual framework of emergency preparedness and response has subsumed ever larger segments of public health policymaking. Emergency planning has become an important discourse of governance, one which reveals a great deal about the operations of state power.
"In this article, I identify three approaches to governance embedded in today's public health law and policy. The first and most traditional approach to governance is that of dominant state authority. What is notable is how this approach is being strengthened by a trend toward greater centralization and hierarchy in infectious disease control, pushing public health into a tighter command and control structure. I describe how this framing process has the effect of melding population health concerns and the security state, as well as insinuating a discourse of emergency response into non-emergency policy-making.
"The second governance model in the public health field is the public-private administrative model. Although public-private models for administrative governance are relatively new to public health compared to many other fields, calls for partnerships with the private sector for the purpose of achieving population health goals are growing. Increasingly, private sector entities are implicated in the state's matrix of collaborative public health institutions.
"The third governance construct is based on the insight from governmentality theory that the state already permeates the private sector even without formal authority; power flows back and forth between public and private entities through a multiplicity of channels and technologies. New federal proposals for 'modern quarantine' provide an example. 'Modern quarantine' policies would depend on the public's instinct to voluntarily sequester themselves in a pandemic, thus utilizing indirect and less coercive methods to control the spread of infectious disease. However, this proposal fails to engage with the full dimensions of the public sector role that would be necessary to enable people to remain at home for three months or more. It cannot succeed without mandates and incentives emanating from the state, a reality which official policy documents have elided."
"From this analysis we can learn a great deal about both current directions in public health policy and about the utility and limitations of new governance theory. The three governance trends taken together exemplify a paradox fundamental to contemporary political debates: how the same apparatus can be intensifying as a security state while at the same time deploying new governance and privatization initiatives. The concept of modern quarantine demonstrates that serious complications lurk beneath the surface when policymakers engage in shallow invocations of new regulatory rhetoric."—Abstract.
"The Comptroller General has suggested one area for fundamental reform and oversight is ensuring a strategic and integrated approach to prepare for, respond to, recover, and rebuild after catastrophic events. FEMA enters the peak of the 2007 hurricane season as an organization in transition working simultaneously to implement the reorganization required by the Post-Katrina Reform Act and moving forward on initiatives to address the deficiencies identified by the post-Katrina reviews. This is an enormous challenge. In the short-term, Congress may wish to consider several specific areas for immediate oversight. These include (1) evaluating the development and implementation of the National Preparedness System, including preparedness for natural disasters, terrorist incidents, and an influenza pandemic; (2) assessing state and local capabilities and the use of federal grants to enhance those capabilities; (3) examining regional and multi-state planning and preparation; (4) determining the status and use of preparedness exercises; and (5) examining DHS polices regarding oversight assistance."—What GAO Found.
"A flu pandemic is a worldwide epidemic of an influenza virus. As such, the United States’ response to a flu pandemic would have both international and domestic components. Additionally, the domestic response effort would include contributions from every governmental level (local, state, tribal, and federal), non-governmental organizations, and the private sector. This report will focus largely on the role of the Department of Defense (DOD) in supporting the nation’s domestic response effort, although it will also touch on DOD’s international role." — Introduction
"This monograph looks at our country's federal and legal system and how it has been used in other kinds of crises, to offer a framework from which to address new threats. It begins by describing the laws Congress has established for dealing with disasters, emergencies and acts of war, then looks at the President's inherent authority for dealing with unanticipated crises, and at state and local emergency powers. Finally, it explores what legal liability may attach to those who respond to an emergency. The monograph identifies relevant statutory authority and case law, to define the limits of what acts government may reasonably initiate and what acts may be found unreasonable by the courts." —Introduction.
"The 13th Amendment ban on involuntary servitude has new relevance as the U.S. grapples with national emergencies such as catastrophic hurricanes, flu pandemics, and terrorism. This Article considers work refusal and coerced work performance in life-threatening employment contexts. Overwhelmed by fear, hundreds of police officers and health care workers abandoned their jobs during Hurricane Katrina. Postal clerks worked against their will without masks in facilities with anthrax. A report by Congress worries that avian flu will cause sick and frightened medical personnel to stay away from work, thus jeopardizing a coherent response to a crisis.
"How far can the U.S. go in forcing reluctant civilians to perform essential jobs during a national emergency? I explore solutions to this question by hypothesizing a large release of radiation - whether by terror attack, or catastrophic accident, or major earthquake - in a vital Pacific port. These ports have a history of work stoppages that disrupt the nation's economy. I examine federal government responses if dock workers refused assignments until conditions were safe: (1) The President could declare a national emergency labor dispute under the Taft-Hartley Act, and seek an 80-day back-to-work injunction. (2) Congress could re-enact Section 8 of the War Labor Disputes Act, making it unlawful for dock workers to discontinue production for 30 days and subjecting violators to coercive damages. (3) The president could issue strong executive orders, backed by imprisonment, that regulate employment in ports.
"At the heart of my analysis, I ask: Would any of these responses violate the Thirteenth Amendment ban on involuntary servitude? Congress and the judiciary have broadened this law, and its enforcement counterpart in 18 U.S.C. ? 1584, beyond the abolition of African slave-holding. The Supreme Court in Kozminski defined involuntary servitude as forcing a person to work by physical or legal coercion.
"But the Supreme Court created 13th Amendment exceptions for transportation work. Robertson upholds a law that bars merchant seamen from quitting work, and imprisons deserters. Butler permits states to conscript citizens to work on highways, on pain of imprisonment. Dock work is similar because ports integrate ships and trucks in a transportation hub. Courts now apply these precedents to new compulsory activities, such as mandatory public service for graduation. Moreover, Kozminski reaffirmed Robertson and Butler as precedents.
"Thus, the Constitution would be unlikely to shield dock workers from involuntary labor. This has troubling implications for employees who have recently worked in national emergencies, and may do so again. Employees who work to alleviate avian flu or other catastrophic health threats are also at risk for compulsory labor that exposes them to extraordinary hazards.
"I conclude with a legislative proposal to strengthen individual rights. As my research shows, courts that are presented with national emergency disputes rarely side with the individual who stands in the way of the public's welfare. Without a more balanced labor policy to address emerging crises, the nation may realize belatedly that when we allow fundamental freedoms to be sacrificed in the name of real or perceived emergency, we invariably come to regret it." —Abstract.
"The Emergency Management Assistance Compact (EMAC) is an agreement among member states to provide assistance after disasters overwhelm a state's capacity to manage consequences. The compact, initiated by the states and coordinated by the National Emergency Management Association, provides a
structure for requesting emergency assistance from party states. In 1996 Congress approved EMAC as an interstate compact (P.L. 104-321). EMAC also resolves some, but not all, potential legal and administrative obstacles that may hinder such assistance at the state level. EMAC also enhances state preparedness for terrorist attacks by ensuring the availability of resources for fast response and facilitating multi-state cooperation in training activities and preparedness exercises.
"In June of 2008, a bill to reform mutual aid agreements for the National Capital Region (P.L. 110-250) was enacted to expand the types of organizations and agencies in the region that are authorized to enter into agreements and ease the requirements for agents and volunteers to respond to an incident. Legislation in the 110th Congress (S. 1452) would require EMAC to ensure that licensed mental health professionals with expertise in treating vulnerable populations are included in the leadership of the National Disaster Medical System and are available for deployment with Disaster Medical Assistance Teams.
"This report will be updated as events warrant. This report is an update based upon a previous report written by Keith Bea, Specialist in American National
Government."-Summary.
"Mutual aid is a key component of the National Incident Management System (NIMS), which provides the framework for emergency response. The federal government now directly supports the establishment of local mutual aid agreements with federal resources and has embarked on a National Mutual Aid and Resource Management Initiative."—Executive Summary.
"The article is a critique of the U.S. government's response to regional recovery following Hurricane Katrina, coupled with an argument that policies based on international standards would better serve the hurricane-stricken area. The author contends that part of the problem is that the legal framework for disaster relief, the federal Stafford Act, is insufficient for shaping recovery for catastrophic humanitarian crises that overwhelm state and local governments. Because the Act calls only for discretionary, intermittent federal efforts, and shields such efforts with broad legal immunity, it is a prescription for the sluggish and ineffective governmental action that has hamstrung the Gulf region's recovery.
"The author maintains that what is needed is a comprehensive recovery program akin to the post World War II Marshall Plan. International standards for humanitarian responses to disaster, specifically the United Nations Guiding Principles on Internal Displacement, serve as a policy framework for such a program. The Principles allow for recognition that a crisis on the scale of Katrina calls for a more robust, centralized, federally-led response that addresses the scope of the problem and the interdependency of its many facets.
"The article has five parts. First is an analysis of the situation in the region, focusing on the New Orleans area. Here the author identifies three categories of problems - the problem of return and rebuilding, focusing on private property and civic infrastructure; the problem of security, focusing on flood protection, levees, and wetlands; and the problem of government, focusing on inefficiency, incompetence and inadequate resource allocation.
"The article's second part analyzes the problem in the law. The Stafford Act is reviewed and judicial criticisms discussed. Part three of the article reviews the specific provisions of the Guiding Principles that apply to the Gulf Coast. The author considers the legal status of the Principles, concluding that while certain of the principles may be evolving into customary international law, they are not legally binding but rather intended as a general policy framework.
"In the fourth part of the article, the author recommends the following sixteen point "Marshall Plan for the Gulf" based on the Principles:
1. The federal government will assume primary responsibility for an integrated recovery effort.
2. All persons displaced or injured by the disaster have recovery rights.
3. Displaced persons willing to return have a right to return and their displacement will end as soon as possible.
4. Living conditions will be established that are materially sufficient to allow persons to return and remain.
5. The government will assist persons whose homes are recoverable to repair and rebuild, and must ensure access to decent and affordable housing.
6. Comprehensive, reliable flood protection measures will be taken, including strengthened levees and coastal wetlands.
7. Ineffective bureaucracies will be replaced by streamlined, efficient, effective and easily understood administrative processes for relief and recovery.
8. The military will be deployed for debris removal and rebuilding.
9. Personal property and possessions will be protected and disaster victims will be reasonably compensated for losses.
10. Gulf Coast residents will have access to health care.
11. The government will reopen schools and take other measures to ensure education for all children in stricken communities.
12. The government will take steps to increase economic opportunities in stricken areas, such as partnerships, incentives and assistance for businesses which reopen or locate in the region.
13. The right of evacuees to participate in politics and civic life must be ensured.
14. Storm victims will be included in recovery planning.
15. Anti-discrimination measures will be enforced to ensure that the disaster and recovery do not have a discriminatory effect.
16. The special needs of at risk groups will be met.
"In the fifth part of the article, the author posits that U.S. adoption of the Principles as the basis for international disaster recovery efforts forms a moral and political basis for their domestic application in the Gulf. This is demonstrated by formal U.S. policy promoting the Principles as well as actual U.S. implementation of the Principles in Iraq and in response to the 2004 tsunamis." —Abstract.
+Mazzone, Jason, The Commandeerer in Chief(provided by: SSRN) (Brooklyn Law School, Legal Studies Paper No. 64) (February 2007)
"Federalism impedes the government's ability to plan for and respond to emergencies. Emergencies often transcend federalist divisions of power and responsibility, rendering unclear which level of government should respond. Though many emergencies require a coordinated response by local, state, and national government, getting different levels of government to work together in times of crises is difficult. Even when states and localities call for outside assistance, they resist undue federal interference in their affairs; a national government that lacks experience working with local actors on the ground can find it difficult to implement relief programs.
"Hurricane Katrina, causing extensive damage in the Gulf Coast region in August of 2005, vividly illustrated how federalism undermines an effective response to emergencies - with deadly results. Despite years of emergency planning in the wake of the terrorist attacks of 9/11, and ample warning in the days preceding Hurricane Katrina that it would cause widespread destruction, no government - national, state or local - adequately prepared vulnerable communities. After Katrina struck, the governmental response was inept. Local governments in New Orleans and other towns were overwhelmed, unable even to communicate with their personnel on the scene. State governments found their resources stretched to breaking point. The national government, cautious about appearing too proactive, delayed its response until specifically asked to help. Federal and state personnel, unaccustomed to working together, mounted independent responses to the hurricane's aftermath and operated without the benefits of a single command structure. State officials rebuffed federal requests to assume overall control of the response efforts. While people perished, officials argued about who was actually in charge.
"Future emergencies - an unwarned detonation of a crude nuclear device in an American city, for instance - could easily dwarf Katrina's impact. Given the widely-recognized failures of the government's response to Katrina and the urgent need for reform, some federal officials have proposed a dramatic solution: in a future emergency, rather than try to work with state and local response personnel, the federal government should simply deploy the military to take over the relief effort. Over opposition from every state governor, in October 2006, Congress passed a bill giving the President authority to deploy military forces to states and localities following a natural disaster or other emergency where specified federal interests are put at risk. Though this new law is not a wholesale authorization to use military resources in times of emergencies, critics contend that any domestic deployment of soldiers undermines civil liberties.
"This Article proposes an alternative solution to the problems federalism presents in times of emergencies. The proposal, which I call emergency commandeering, is based on some provisions of the Constitution that are today largely forgotten but that were used regularly in earlier years of the nation. Under my proposal, when the federal government responds to certain kinds of emergencies, it can call into periods of mandatory federal service the emergency response personnel of the state in which the emergency occurs and, if necessary, emergency response personnel from other states. During emergencies, these state employees - police, firefighters, emergency medical technicians, urban search and rescue teams, and public health specialists - would serve with compensation under the command of the President as Commander in Chief. Emergency commandeering allows the national government to mount an effective response, one that draws upon the skills and experiences of state and local personnel, without the hindrance of multiple command structures or other forms of state and local resistance. The Article sets out in detail how emergency commandeering would operate. It also shows why emergency commandeering is authorized by the Constitution, consistent with federalism, and, compared to the alternative of sending the military into our streets, good also for democracy." —Abstract.
+McCarthy, Francis X., Analyst in Emergency Management Policy, Government and Finance Division, Congressional Research Service (CRS), FEMA's Disaster Declaration Process: A Primer (RL 34146)(March 18, 2010) (PDF — 265K)
"The amount of assistance provided through presidential disaster declarations has exceeded $100 billion. Often, in recent years, Congress has enacted supplemental appropriations legislation to cover unanticipated costs. While the amounts spent by the federal government on different programs may be reported, and the progress of the recovery can be observed, much less is known about the process that initiates all of this activity. Yet, it is a process that has resulted in an average of more than one disaster declaration a week over the last decade.
"The disaster declaration procedure is foremost a process that preserves the discretion of the governor to request assistance and the President to decide to grant, or not to grant, supplemental help. The process employs some measurable criteria in two broad areas: Individual Assistance that aids families and individuals and Public Assistance that is mainly for repairs to infrastructure. The criteria, however, also considers many other factors, in each category of assistance, that help decision makers assess the impact of an event on communities and states."—Summary.
"The argument against crafting federal regulations for problems stemming from development in disaster-prone areas (nation-on-edge problems) assumes that these types of problems are essentially local problems requiring unique local solutions. In this Article, Jeffrey G. Miller challenges this assumption, reasoning that a flexible framework of federal regulations would indeed be effective at remedying these problems. He suggests that such a framework could be modeled after the Clean Water Act's (CWA's) point source pollution control regime. A permitting system similar to that set out in the CWA would promote best management practices while still allowing local entities
the freedom to determine which particular practices are most effective for them. He recommends that we reexamine our conception of federalism before abandoning hope of federal solutions to nation-on-edge problems." —Executive Summary.
+Myler, Bernadette A., Economic Emergency and the Rule of Law(provided by: SSRN) (Cornell Legal Studies Research Paper No. 06-045) (DePaul Law Review, 2007)
"Academic work extolling the merits of the "rule of law" both domestically and internationally abounds today, yet the meanings of the phrase itself seem to proliferate. Two of the most prominent contexts in which rule of law rhetoric appears are those of economic development and states of emergency. In the area of private law, dissemination of the rule of law across the globe and, in particular, among emerging market countries is often deemed a prerequisite for enhancing economic development, partly because it ensures that foreign investments will not be summarily expropriated and that contractual rights will not be frustrated by governmental interference. Much of public law scholarship has, in turn, examined whether and in what form the rule of law, which is often seen as a basic requirement for a liberal political order, can be retained during times of emergency.
"While the economic development and state of emergency contexts for rule of law discussions appear quite distinct, they do converge in at least one situation, that of economic emergency. Paradigmatic cases of economic emergency include the Great Depression, the Argentine fiscal crisis of 2001, and the East Asian currency crisis of the late 1990s. Arguably more marginal instances might comprehend the economic consequences of Hurricane Katrina, the economic dimensions of a potential bird flu pandemic, or the threatened financial chaos of the Y2K computer crisis. Either the economic development or emergency-oriented approach to the rule of law could lead to the conclusion that none of these situations justify abrogation of core rule of law values - but this, of course, puts aside the question of which values do lie at the center of the rule of law.
"This Article contends that, in the United States context, the rule of law should be conceived flexibly enough to permit governmental intervention that may temporarily disrupt the economic but not personal liberty or political participation rights of individuals during these situations of economic emergency. Without addressing whether and to what extent the government should interfere in the economic sphere, this Article argues that several justifications based in the democratic vision underlying our constitutional system warrant treating the suspension of economic rights differently from the suspension of rights such as those of habeas corpus or the vote." —Abstract.
"EMAC, the Emergency Management Assistance Compact, is a congressionally ratified organization that provides form and structure to interstate mutual aid. Through EMAC, a disaster impacted state can request and receive assistance from other member states quickly and efficiently, resolving two key issues upfront: liability and reimbursement. The EMAC mutual aid agreement and partnership between the member states exist because from hurricanes to earthquakes, wildfires to toxic waste spills, and terrorist attacks to biological and chemical incidents, all states share a common enemy: the threat of disaster.
"EMAC is the first national disaster-relief compact since the Civil Defense and Disaster Compact of 1950 to be ratified by Congress. The strength of EMAC and the quality that distinguishes it from other plans and compacts lies in its governance structure, its relationship with federal organizations, states, counties, territories, & regions, and the ability to move just about any resource one state has to assist another state, including medical resources."—What is EMAC?
"America builds on the edge of disaster prone areas: on moveable barrier islands, fragile coastal ecosystems, shorelines subject to inundation, and next to flammable forests. Ferocious storm events focus local and national attention in the tragic moment and during short-term recovery efforts; then, too often, we return to business as usual, continuing to build and rebuild on the edge. 'Losing Ground' provides effective perspectives and prescriptions for longer-term disaster mitigation planning and action. Authors from a variety of disciplines (including law, history, geography, environmental science, and urban planning) review past policies and practices, the lessons learned from previous disasters, current approaches to disaster planning and recovery, an assessment of the proper roles and responsibilities of various levels of government in the federal system, new legal and technological tools, and a review of innovations in disaster mitigation.
"Oliver A. Houck, a renowned professor of law from Tulane University, provides a preface from the perspective of a post-Katrina New Orleans: 'Perhaps, the most striking aspect of the post-Katrina Gulf Coast, from Alabama to Texas, is the rush to rebuild in exactly the same places, a few feet back, a few feet higher, more high priced investment than ever before. Two lane bridges are replaced by six lane bridges. Modest beach homes are replaced by condominiums. The hurricane has led to a construction boom. As the Gross National Product measures these things, the hurricanes were a huge success. What is wrong with this picture?.' "—Publisher's Description.
"While dams have multiple benefits (as well as some financial and environmental
costs), they also present a risk to public safety and economic infrastructure. This risk
stems from two sources: the likelihood of a dam failure, and the damage it would
cause. While dam failures are infrequent, age, construction deficiencies, inadequate
maintenance, and seismic or weather events contribute to the likelihood. To reduce
the risk, regular inspections are necessary to identify potential problems. Corrective
action then can be taken to remedy those deficiencies. Congress is often called upon
to fund remedial actions, as a way to prevent the larger catastrophes. The 110th
Congress will likely see proposals for improving dam safety and may oversee
existing safety programs."—Summary.
+Relyea, Harold C., Specialist in American National Government, Government and Finance Division, Congressional Research Service (CRS), National Emergency Powers (PDF — 84K)
"With the exception of the habeas corpus clause, the Constitution makes no allowance for the suspension of any of its provisions during a national emergency. Disputes over the constitutionality or legality of the exercise of emergency powers are judicially reviewable. Indeed, both the judiciary and Congress, as co-equal branches, can restrain the executive regarding emergency powers. So can public opinion. Furthermore, since 1976, the President has been subject to certain procedural formalities in utilizing some statutorily delegated emergency authority. The National Emergencies Act (50 U.S.C. 1601-1651) eliminated or modified some statutory grants of emergency authority, required the President to declare formally the existence of a national emergency and to specify what statutory authority, activated by the declaration, would be used, and provided Congress a means to countermand the President's declaration and the activated authority being sought. The development of this regulatory statute and subsequent declarations of national emergency are reviewed in this report, which is updated as events require."—Summary.
"In the immediate aftermath of the terrorist attacks of September 11, 2001, President George W. Bush established the Office of Homeland Security and the Homeland Security Council (HSC). In his June 2002 proposal for a Department of Homeland Security, President Bush appeared to anticipate the continued operation of both of these entities. However, the Homeland Security Act of 2002, which mandated the new department, statutorily rechartered the HSC as an agency within the Executive Office of the President (EOP). Thereafter, the HSC disappeared from the public record, and its status today remains uncertain. Recently, some have called for the merger of the HSC with the National Security Council."—Summary.
"Natural disasters and acts of terrorism have placed a spotlight on the ability of health care providers to surge in response to catastrophic conditions. This paper reviews the status of efforts to develop the capacity
and capabilities of the health care system to respond to disasters and other mass casualty events. Strategies for adapting routine medical practices and protocols to the demands posed by extraordinary circumstances and scarce
resources are summarized. Existing federal roles, responsibilities, and assets relative to the contributions of state and local government and the private sector are described, including specific programmatic activities such as the Strategic National Stockpile, the National Disaster Medical System, and the Hospital Preparedness Program. Opportunities for federal policymakers
seeking to strengthen and expedite preparations for medical disaster response are highlighted." —Overview.
"The traditional link between disaster mitigation and local land use planning was highlighted by the Disaster Mitigation Act (DMA) of 2000, which emphasizes the need for mitigation coordination among state and local entities. In this Article, Patricia E. Salkin looks at the role of local governments in natural disaster mitigation, specifically, how local governments may use traditional land use powers, such as the police power, to protect against disasters. She cites DMA provisions that offer financial incentives to states that
work with local governments to plan for growth and disasters; she also sets forth case studies to illustrate how states can create vertical links among federal, state, and local entities to coordinate disaster mitigation strategies."—Editors' Summary.
"The Draft 2007 SHMP includes new content on emerging subjects brought to public attention by recent events. In the revised Draft 2007 SHMP, OES is addressing a variety of new conditions, laws, and programs which have emerged since the current plan was published in 2004. These include: climate change, tsunami mitigation and preparedness, San Francisco Bay-San Joaquin Delta regional levee failure, and deadly landslides such as that which occurred in La Conchita in 2005." The Draft has been approved by FEMA, as indicated in a letter of October 12, 2007 (PDF, 68K), to Henry R. Renteria, Director of OES, from FEMA. The SHMP site will shortly reflect the updated status of the document.
"This report provides a brief overview of selected legal issues including emergency measures, civil rights, liability issues, and employment issues.
There are a number of emergency measures which may help to contain or ameliorate an infectious disease outbreak. The Public Health Service Act, the Federal Food, Drug, and Cosmetic Act, the National Emergencies Act, and the Stafford Act contain authorities that allow the Secretary of Health and Human Services or the President to take certain actions during emergencies or disasters. While the primary authority for quarantine and isolation in the United States resides at the state level, the federal government has jurisdiction over interstate and border quarantine. The federal government also issues recommendations regarding such activities as school closures and vaccination programs. States and local governments have the authority to initiate emergency measures such as mandatory vaccination orders and certain nonpharmaceutical interventions such as school closures, which may lessen the spread of an infectious disease. The International Health Regulations adopted by the WHO in 2005 provide a framework for international cooperation against infectious disease threats." — Introduction
"Mayors acknowledge that more must be done at every level of government to make sure that cities, and the nation, are able to respond to the growing challenges of homeland security and emergency response. 'This new survey shows that we must further strengthen our partnership with the federal government to make sure that our
domestic "first preventers" and "first responders" have the resources and training they need to succeed, and that
all necessary federal support is ready in the event of a major disaster,' [Conference of Mayors President, Dearborn Mayor Michael] Guido said."—Press Release.
"This Directive is issued to establish military Emergency Preparedness Liaison Officer (EPLO) policy and program guidance governing the use of Reserve component (RC) members in providing military support and assistance to civil authorities. The Directive also establishes DoD policy for the management of EPLO programs in each of the Military Departments."—Summary.
"This Directive updates policy and responsibilities governing planning and response by the DoD Components for military assistance to Federal, State, and local government (including government of U.S. territories) and their law enforcement agencies for civil disturbances and civil disturbance operations, including response to terrorist incidents, which hereafter are referred to cumulatively as 'Military Assistance for Civil Disturbances.' "—Summary.
"This Directive establishes DoD policy and assigns responsibilities for providing military assistance to civil authorities. Supersedes reference Secretary of Defense Memorandum, 'Military Assistance to Civil Authorities,' December 12, 1995. Cancels reference Deputy Secretary of Defense Memorandum, 'Support of Civil authorities in airplane Hijacking Emergencies,' July 29, 1972 and AR 385-70/AFR 55-13/OPNAVINST 3710.18B, 'Unmanned Free Balloons and Kites, and Unmanned Rockets,' December 13, 1965."—Summary.
"Recognizing the need for an overarching emergency communications strategy to address these shortfalls, Congress directed the Department of Homeland Security's (DHS) Office of Emergency Communications (OEC) to develop the first National Emergency Communications Plan (NECP). Title XVIII of the Homeland Security Act of 2002 (6 United States Code 101 et seq.), as amended, calls for the NECP to be developed in coordination with stakeholders from all levels of government and from the private sector.
In response, DHS worked with stakeholders from Federal, State, local, and tribal agencies to develop the NECP—a strategic plan that establishes a national vision for the future state of emergency communications."—Executive Summary.
"The Department of Justice is committed to working in partnership with state and local law enforcement and communities to combat violent crime. As part of this effort, the Department has allocated additional resources to New Orleans following Hurricane Katrina."
"The Department of Homeland Security (DHS) Federal Emergency Management Agency (FEMA) HMA programs present a critical opportunity to reduce the risk to individuals and property from natural hazards while simultaneously reducing reliance on Federal disaster funds.
Together, these programs provide significant opportunities to reduce or eliminate potential losses to State, Tribal, and local assets through hazard mitigation planning and project grant funding. Each HMA program was authorized by separate legislative action, and as such, each program differs slightly in scope and intent." — Funding Opportunity Description
"The purpose of the Biological Incident Annex is to outline the actions, roles, and responsibilities associated with response to a human disease outbreak of known or unknown origin requiring Federal assistance. In this document, a biological incident includes naturally occurring biological diseases (communicable and noncommunicable) in humans as well as terrorist events. This definition also includes those biological agents found in the environment, or diagnosed in animals, that have the potential for transmission to humans (zoonosis). Incidents that are restricted to animal, plant, or food health or safety are reviewed in other annexes. Actions described in this annex take place with or without a Presidential Stafford Act declaration or a public health emergency declaration by the Secretary of Health and Human Services (HHS). This annex outlines biological incident response actions including threat assessment notification procedures, laboratory testing, joint investigative/response procedures, and activities related to recovery." — Introduction
"The plan that establishes a comprehensive all-hazards approach to enhance the ability of the United States to manage domestic incidents." — FEMA website
"To conduct this work, we analyzed the text of the Post-Katrina Act and identified well over 300 discrete provisions within the legislation that call for DHS or FEMA action to implement requirements or exercise authorities—or to be prepared to do so under the appropriate conditions. We reviewed agency documents and discussed the act’s implementation with numerous senior-level program officials at FEMA and DHS to identify actions FEMA and DHS have taken in response to the act’s provisions. To determine the status of the Post-Katrina Act’s implementation, we compared the actions described in agency documents and reported by knowledgeable officials with the discrete provisions we had identified as requiring agency action to implement. We also identified areas to be addressed, where no or little action had been taken. In addition, when agency officials reported challenges to us in implementing a particular section, we included that information as well." — Scope, Methodology & Limitations
"Since its inception in 1995, the EMAC network has grown significantly in size, volume, and the type of resources it provides. EMAC's membership has increased from a handful of states in 1995 to 52 states and territories today, and EMAC members have used the compact to obtain support for several types of disasters including hurricanes, floods, and the September 11, 2001 terrorist attacks. The volume and variety of resources states have requested under EMAC have also grown significantly. For example, after the September 11, 2001 terrorist attacks, New York requested 26 support staff under EMAC to assist in emergency management operations; whereas, in response to the 2005 Gulf Coast hurricanes, approximately 66,000 personnel—about 46,500 National Guard and 19,500 civilian responders— were deployed under EMAC from a wide variety of specialties, most of whom went to areas directly impacted by the storms.
"While the EMAC network has developed a basic administrative capacity,opportunities exist for it to further build on and sustain these efforts. The EMAC network has adopted several good management practices, such as using after-action reports to learn from experiences and developing a 5-year strategic plan. However, the EMAC network can enhance its administrative capacity by improving how it plans, measures, and reports on its performance. FEMA provided $2 million to help build this capacity in 2003, but the agreement has recently expired. FEMA and EMAC leadership are in the process of finalizing a new 3-year cooperative agreement. Such an agreement would enhance the EMAC network's ability to support its collaborative efforts." —What the GAO found.
"The mass destruction and displacement of people caused by the hurricanes created new challenges, including an unprecedented demand for services from these five programs. The demand for food stamps and UI benefits, and the disaster assistance they provide, rose sharply. New evacuee policies were created to provide food stamps and TANF assistance to evacuees nationwide. In contrast, Social Security and SSI had a significant increase for replacement benefits, but did not have a large increase in new applications.
"Disaster plans, flexible service delivery options, and access to contingency funding facilitated response, but not all programs had these elements in place. The federally administered Social Security and SSI programs had service delivery disaster plans in place to meet demand. However, such strategies were sometimes lacking for the state-administered Food Stamp, UI, and TANF programs. Flexible service delivery options such as 800 numbers and Internet application services and debit cards for issuing benefits expedited services. Last, access to contingency funding was key to facilitating disaster response."—What GAO Found.
