BerkeleyLaw Library

"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.

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."

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.

"Developed by the Secretary of Homeland Security at the request of the President, the National Incident Management System (NIMS) integrates effective practices in emergency preparedness and response into a comprehensive national framework for incident management. The NIMS will enable responders at all levels to work together more effectively to manage domestic incidents no matter what the cause, size or complexity." The NIMS site includes links to the NIMS document, FAQs, and other supporting materials.

"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 enacted."—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.

"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.

"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

"The U.S. National Response Team (NRT) is an organization of 16 Federal departments and agencies responsible for coordinating emergency preparedness and response to oil and hazardous substance pollution incidents. The Environment Protection Agency (EPA) and the U.S. Coast Guard (USCG) serve as Chair and Vice Chair respectively. The National Oil and Hazardous Substances Pollution Contingency Plan (NCP) and the Code of Federal Regulations (40 CFR part 300) outline the role of the NRT and Regional Response Teams (RRTs). The response teams are also cited in various federal statutes, including Superfund Amendments and Reauthorization Act (SARA) ??? Title III and the Hazardous Materials Transportation Act [HMTA]."—Website.

Website includes section on applicable laws, regulations, and directives.