BerkeleyLaw Library

"The Federal Emergency Management Agency (FEMA) assists states and localities overwhelmed by, or at risk from, disasters. FEMA also coordinates federal emergency management activities and planning for the continuity of government should national security be threatened.

"Since 1979 FEMA has administered a range of authorities that enable the agency to serve as the primary source of federal technical and financial assistance for emergency management. Among the types of aid provided through FEMA programs are grants and material to help disaster victims meet pressing needs such as food and shelter, education and training programs to improve the response capabilities of nonfederal officials, and mobile communications equipment. FEMA exercises little regulatory authority, but directives that underlie the agency's mission authorize the agency to establish standards for reconstruction of buildings after a disaster declaration is issued, for the construction of federal buildings in earthquake-prone areas, and for the operation of first responder equipment.

"FEMA has responded to, and has helped communities prepare for, terrorist attacks in the United States. The Office of Homeland Security (OHS), established by President Bush subsequent to the attacks in 2001, has a similar, but more encompassing, mission related to disasters caused by terrorist actions. Congressional debate on the contours and framework for federal administration of homeland security might include consideration of FEMA's mission, the extent to which that mission overlaps with the assignments given the new OHS, and a new structure or set of authorities for the agency.

"This report identifies authorities drawn from public sources. It does not refer to classified authorities not available to the public, does not include references to temporary authorities that require FEMA to provide assistance for specific disasters or needs, and does not include information on plans, regulations, or operating manuals developed to implement these policies. This report will be updated as the authorities governing the agency's mission undergo significant change."—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.