BerkeleyLaw Library

Three memoranda from Sec. Chertoff to employees of the Department of Homeland Security (DHS), detailing reorganization of FEMA in response to the Post-Katrina Emergency Management Reform Act.

"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.

"The vulnerability of California's Delta region to massive flooding stands as one of the state's most urgent policy issues. One of the state's few tools in place to curb urbanization in the Delta is the Delta Protection Act. Adopted in 1992, the Act created the Delta Protection Commission as the regulatory body charged with overseeing development in the Delta. Reflecting a spirit of political compromise, however, the Act limits the jurisdiction of the Commission to the Delta's primary zone while development in the secondary zone goes unregulated. The Delta Protection Commission was called into action for the first time in the fall of 2006 when the Yolo County Board of Supervisors approved a plan for residential development on land presumed to be within the primary zone. In February of 2007 the Commission voted to officially reject the development as a violation of the Delta Protection Act. The primary basis for the Commission's decision was that the Old Sugar Mill Project would 'expose the public to increased flood hazards.' The Commission's decision is, however, appealable in court, and, reflecting the Commission's grossly insufficient regulatory authority, it is uncertain whether the decision will withstand a legal challenge.

"Even if the Delta Protection Commission's decision is ultimately upheld in court, however, the Clarksburg situation demonstrates the irrationality, and unacceptability, of California's Delta land-use regulatory scheme. At present, developments that pose a clear risk to public safety and the long run health of both the Delta and state economy go unchallenged simply because certain land is designated as the secondary zone and, thus, falls within the exclusive jurisdiction of local governments. In order to alleviate this untenable situation California must create a dominant regulatory body with the authority to strictly oversee land-use throughout the Delta region."—Abstract.

"The U.S. Fire Administration (USFA) — which includes the National Fire Academy (NFA) — is currently an entity within the Federal Emergency Management Agency (FEMA) of the Department of Homeland Security (DHS). The objective of the USFA is to significantly reduce the nation's loss of life from fire, while also achieving a reduction in property loss and non-fatal injury due to fire. The Administration's FY2009 budget proposal requested $40.9 million for USFA, a reduction of 5.5% from the FY2008 level. For FY2009, the Senate Appropriations Committee approved $43.3 million for USFA, while the House Appropriations Committee approved $44.979 million. The Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009 (P.L. 110-329) — which contains the FY2009 Department of Homeland Security Appropriations Act — provided $44.979 million for USFA. Meanwhile, the United States Fire Administration Reauthorization Act of 2008 (H.R. 4847/S. 2606) was signed into law on October 8, 2008 (P.L. 110-376). This report will be updated as events warrant."—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.

"The Stafford Act establishes two incident levels—emergencies and major disasters. Emergencies tend to be smaller events where a limited federal role will suffice. Major disasters are larger events—but this can run the gamut from a blizzard in Buffalo to a major earthquake in southern California that affects millions. In other words, no distinction, and no special response, is provided in the Stafford Act following catastrophes such as major earthquakes and hurricanes. The Stafford Act should be amended to establish a response level for catastrophic events.

"The Stafford Act does not adequately recognize 21st century threats. For example, the definition of a major disaster does not cover chemical, biological, radiological, or nuclear attacks or accidents. The act should further be amended to encompass 21st century threats.

"This report does not focus on the performance of government agencies immediately following a disaster—these have been well documented by others. Rather, this report focuses on the federal role in the long-term recovery and rebuilding process following catastrophes, and what can be done to improve the effectiveness of the federal government in aiding these efforts."—Executive Summary.

Final rule published by the EPA on March 22, 2007, which excuses violations of air quality standards for major air pollutants that are due to "exceptional events," including natural events, such as hurricanes and other natural disasters.