"Six statutes enacted by the 109th Congress are notable in that they contain changes that apply to future federal emergency management actions.... Most of these statutes contain relatively few changes to federal authorities related to emergencies and disasters. The Post-Katrina Act, however, contains many changes that will have long-term consequences for FEMA and other federal entities. That statute reorganizes FEMA, expands its statutory authority, and imposes new conditions and requirements on the operations of the agency."—Summary.
"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 tragedies of 9/11, Katrina and Rita raised major problems with emergency responses, which did not proceed according to plan. Emergency action plans (EAP's) are a relatively new phenomenon, but the legal principles governing them are based in long-established rules of negligence.
"Statutes, regulations, and professional standards often require the preparation of emergency action plans (EAP's) to facilitate the response, recovery, and rebuilding efforts when a disaster occurs. The tragic events of 9/11 prompted an article, published by the University of Pittsburg Law Review (63 U. Pitt. L. Rev. 791) three years ago. It laid out the legal issues invoved with emergency planning. The article discussed the three separate problems with EAP's: 1) Failure to prepare an EAP in the first instance; 2) Failure to follow the EAP; and 3) ineffectiveness of the EAP. The article has been substantially expanded since the initial publication in recognition of the reality that we are still on a steep learning curve with emergency planning.
"The article was the third in a series dealing with the issues of disasters. The first, Act of God? or Act of Man? A Reapprisal of the Act of God Defense in Tort Law was published at 15 The Review of Litigation 1 (1996) and is available on SSRN. The second is The Duty to Disclose Geologic Hazards in Real Estate Transactions, 1 Chapman Law Rev.13 (1998). The thesis of the three articles is that natural disasters are generally foreseeable today, and even if they cannot be prevented, the effects may be ameliorated through the exercise of reasonable care in the planning and response efforts." —Abstract.
"The tragedies of 9/11 and Katrina bring to the fore the need for emergency action planning. Government has responded by enacting statutes and ordinances, and issuing regulations. Industry has responded through the promulgation of professional standards, especially NFPA 1600, which was highly praised by the 9/11 Commission. The National Fire Protective Association is one of the most prominent private standards setting organizations nationally and throughout the world. Its standards and codes are often incorporated into statutes, ordinances, and regulations.
"This article outlines the role these sources of legal authority should play in establishing legal standards for emergency responses. It looks to both traditional legal precedence and the case law which has evolved around NFPA standards.
"Unlike many earlier articles, this essay emphasizes that statutes, ordinances, regulations, and professional standards only set the floor for legal liability. The common law duty of reasonable care under the circumstances may impose a higher duty of care based upon the reasonable foreseeability of the risk." —Abstract.
+Bourne, Marko, Director, Office of Policy & Program Analysis, Department of Homeland Security (DHS), Office of Inspector General (OIG), Hurricaine Katrina Multitier Contracts (June 2008) (OIG 08-81) (PDF — 603K)
"We initiated this audit in response to Congressional concerns that, in the wake of hurricanes Katrina and Rita, multitier subcontracting (1) increased costs to the government, (2) limited opportunities for small and local businesses to participate in response and recovery efforts, and (3) resulted in layers of subcontractors being paid profit and overhead while adding little or no value to the work performed under the contract. Our objectives were to determine the validity of these concerns, as well as to determine the potential effect Section 692 of the Post-Katrina Emergency Management Reform Act of 2006 could have on future disaster contracting.
"It does not appear that multitier subcontracting, as an isolated factor, caused significant increases in costs to the government, nor did it reduce subcontracting opportunities for small and local businesses. The prime contractors subcontracted a significant amount of the value of their contracts to small and local businesses.
"Although FEMA relied on large national prime contractors, initially preventing small and local businesses from participating as prime contractors themselves, the national prime contractors generally did well hiring small and local subcontractors. However, because subcontractor invoices generally do not include specific information on lower tier subcontractors, we could not determine how many layers of subcontracting existed on contracts or whether any layers involved contractors charging profit without contributing substantially to the work being performed on the contract.
"Although Section 692 of the Post-Katrina Emergency Management Reform Act of 2006 would limit subcontracting to 65% of total contract costs, nothing in this legislation specifically restricts the number of tiers of subcontractors. Further, by limiting subcontracting, Section 692 could restrict funding available to small and local businesses while potentially impairing FEMA's ability to respond quickly to future catastrophic disasters. The Department of Defense has promulgated less restrictive rules to control multitiering that reduce the risks inherent in Section 692. Therefore, we recommend FEMA officials work with DHS officials, the Office of Federal Procurement Policy and Congress to promulgate less restrictive rules over multitier contracting." —Executive Summary.
Comprehensive coverage of the rules governing military assistance to civil authorities in situations including disaster and domestic emergency assistance (ch. 8). The second volume consists of the texts of legislation, executive orders, and other pertinent controlling documents.
"As we approach the one-year anniversary of the Post-Katrina Emergency Management Reform Act of 2006 (P.L. 109-295) ('Post-Katrina Act' or the 'Act'), I would like to provide an update on organizational changes the Department of Homeland Security (DHS) has made to implement the Act. This letter also provides an update on certain additional organizational improvements to the Department made pursuant to Section 872 of the Homeland Security Act of 2002 (P.L. 107-296) (HSA). We are pleased to report that we have completed the functional transfers required by the Post-Katrina Act and have requested the additional changes described in the January 18, 2007 Section 872 notice, effective March 31, 2007."
"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.
"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.
+Holt, Mark & Anthony Andrews, Specialists in Energy Policy, Resources, Science, and Industry Division, Congressional Research Service (CRS), Nuclear Power Plant Security and Vulnerabilities (CRS Report for Congess, Order Code RL34331) (January 18, 2008) (PDF — 96K)
"The physical security of nuclear power plants and their vulnerability to deliberate acts of terrorism was elevated to a national security concern following the events of September 11, 2001.
"Title VI of the Energy Policy Act of 2005 regarding nuclear security amended the Atomic Energy Act with the addition of new provisions for security evaluations and rulemaking to revise the 'Design Basis Threat.' The act included provisions for fingerprinting and criminal background checks of security personnel, their use of firearms, and the unauthorized introduction of dangerous weapons. The designation of facilities subject to enforcement of penalties for sabotage expanded to include treatment and disposal facilities.
"As part of security response evaluations, the act requires the Nuclear Regulatory Commission (NRC) to conduct 'force-on-force' security exercises at nuclear power plants at least once every three years, and revise the 'design-basis threat' to consider a wider variety of potential attacks.
"The NRC has strengthened its regulations on nuclear power plant security, but critics contend that implementation by the industry has been too slow and that further measures are needed. Vulnerability to a deliberate aircraft crash remains an outstanding issue, as the latest NRC rulemaking addresses only newly designed plants. Shortcomings in the performance of security contractors has drawn the attention of Congress.
"This report will be updated as events warrant."—Summary.
+Kruger, Lennard G., Specialist in Science and Technology Resources, Science, and Industry Division, Congressional Research Service (CRS), United States Fire Administration: An Overview (CRS Report for Congress, Order Code RS20071) (Updated October 10, 2008) (PDF — 70.3K)
"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.
"This report provides a legal analysis of the eligibility of an influenza pandemic
(flu pandemic) to be declared by the President as a major disaster under the Robert T. Stafford Disaster Relief and Emergency Assistance Act. In 1997, the discovery of a virulent H5N1 strain of avian influenza (bird flu) raised the possibility of a flu pandemic occurring in the United States. In such an event, the Stafford Act could provide authority for federal assistance. Although it is widely agreed that emergency assistance under the Stafford Act could be provided by the President in the event of a flu pandemic, questions remain as to whether major disaster assistance would be available. An analysis of the Stafford Act suggests that this issue was not addressed by Congress when it drafted the current definition of a major disaster, and that neither inclusion nor exclusion of flu pandemics from major disaster assistance is explicitly required by the current statutory language.
"In the 109th Congress, ? 210 of S. 3721 would have made any outbreak of infectious disease explicitly eligible for major disaster assistance, but it was not
"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 Disasters Roundtable convened its 15th workshop on Law, Science, and Disaster on October 18, 2005. It is recognized that science and technology can provide part of the basis for more effective hazard-related laws and regulations, including zoning laws, building codes, and hazard disclosure requirements. It is also clear that issues unrelated to science and technology also drive the development of hazard and disaster law. This workshop examined recent developments and trends in hazard and disaster law and its implementation, and drew on the September 11, 2001 experience to discuss the related issue of victim compensation."—Summary.
"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.
"Historically, regulatory approaches to natural disaster mitigation have been created in the aftermath of specific disasters. For instance, the world's first city building code was created in the wake of the Great Fire of
London, and the U.S. Congress enacted flood control rules for the Lower Mississippi after the Great Mississippi River Flood of 1927. In this Article, Rutherford H. Platt discusses how natural disasters have informed society's
understanding of natural resource management and land use planning over the last several centuries. He examines the evolution of single use policies into multiple use management, deconstructs federal disaster policies, and advocates for ecological cities. He concludes with a reminder to address natural disaster
mitigation—indeed, all of modern urban planning—with comprehensive policies addressing the full range of urban needs."—Editors' 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.
"The term natural disaster is a misnomer. As Anna K. Schwab and David J. Brower note in this Article, disasters do not occur naturally,
they occur only where humans have placed themselves in the way of natural hazard events. Therefore, decisions about the way human environments are initially constructed can mitigate the effects of natural hazard events. They distinguish between resistance and resilience, explaining that attempts to resist forces of nature by trying to contain or control nature itself have largely been
unsuccessful. By contrast, resilience efforts, such as hazard avoidance, environmental
preservation, and education and outreach, reduce vulnerability to natural hazard events. The authors explain a range of resilience techniques and discuss hazard mitigation planning under the Disaster Mitigation Act of 2000."—Executive Summary.
"This paper investigates the political economy of FEMA's post-9/11 merger with the Department of Homeland Security. Using panel data for the post-DHS merger but pre-Katrina period, this paper examines how FEMA's much-debated reorganization has impacted the strong political influences on disaster declaration and relief spending identified by Garrett and Sobel (2003) before FEMA's reorganization. The authors find that although politically-important states for the president continue to have a higher rate of disaster declaration, disaster expenditures are no longer higher in states with congressional representation on FEMA oversight committees. These results suggest reorganization has reduced political pressure within FEMA."—Abstract
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.
Hearings before the Subcom on Legislation and National Security on Reorganization Plan No. 3 to establish a Federal Emergency Management Agency (FEMA) consolidating emergency preparedness programs currently administered by the National Fire Prevention and Control Administration, Federal Insurance Administration, Federal Emergency Broadcast System, Defense Civil Preparedness Agency, Federal Disaster Assistance Administration, and Federal Preparedness Agency. Full Committee Member Elliott H. Levitas (D-Ga) participates in questioning witnesses on June 26. Appendix contains submitted statements and correspondence.