+American Bar Association (ABA) Standing Committee on Law and National Security, Section of State & Local Government Law & Section of Admininstrative Law and Regulatory Practice, Hurricane Katrina Task Force Subcommittee Report (February 2006) (PDF — 453K)
"The purpose of this study was to examine the legal authorities available to guide the
preparation and response to a catastrophic incident, whether from terrorism, accident or
natural causes.... The devastation wrought by Hurricane Katrina did not occur because laws were inadequate. Lack of adequate training and readiness, failure of various entities to ensure
communications and coordination, delay from inaction, and breakdown of leadership all
contributed."—Albert C. Harvey, Report Conclusion.
"At the one-year anniversary of Hurricanes Katrina and Rita, the American College of Emergency Physicians conducted a survey of emergency physicians practicing in the areas that were most affected by the storms.
"More than half (52%) report very little or no progress in the recovery of the emergency care system.
Three-fifths (60%) report their emergency departments are not functioning to the extent
they had before the storms.
Two-fifths (32%) remained upbeat about their own emergency departments, saying they are functioning to the extent they had before the storms.
Sixty-five percent say that their patients were being harmed because they must wait for treatment.
Thirty-six percent say that if the recovery were not sufficiently improved by the second year anniversary, they would consider leaving to practice in another state."
"The devastation caused by Hurricane Katrina reached beyond the borders of the
states directly affected by the wind, rain, and floods. Before the storm reached the coast,
thousands of residents of Louisiana and Mississippi evacuated to other states, including
Texas and Oklahoma. As a result, President Bush issued emergency declarations for 36
states solely to help them meet the needs of evacuees. In general, evacuation policy is
set and enforced by state and local officials. However, federal policy does provide for
certain aspects of civilian emergency evacuation. Members of Congress may elect to
reconsider federal policy options to more fully integrate federal and state authorities
through legislation such as H.R. 3815, H.R. 4066, H.R. 4258, H.R. 5351, S. 1685, S.
1807, S. 2124, S. 2133, and S. 3721."—Summary.
"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.
"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.
"In light of the catastrophic impact of hurricanes Katrina and Rita, controversy has arisen over whether state and local organizations have overemphasized preparedness for terrorism at the expense of emergency preparedness for natural disasters. Our survey results suggest that the events of 9/11 spurred response organizations not only to undertake preparedness activities for terrorism-related incidents—e.g., updating response plans to address chemical, biological, radiological/ nuclear, and explosives (CBRNE) incidents—but also to make general improvements in emergency response, including updating mutual-aid agreements and participating in joint preparedness activities with other organizations. All these activities support overall preparedness for any catastrophic event."—Summary.
"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.
The legal publisher BNA makes its Web Watch available for free. This posting includes links to federal government agencies and legislation, and pertinent non-governmental organization sites.
The legal publisher BNA makes its Web Watch available for free. This posting includes links to federal government hearings and panels, as well as NGO publications. Despite the title of the posting, many of the resources cover issues beyond contract fraud.
Discusses how plans for an emergency communications system put in place by the government following Hurricane Katrina have been both politicized and criticized, and private entrepreneurs have stepped in to fill the void.
"Objective: To strengthen the capacity of the United Nations system to coordinate and support humanitarian assistance for disaster reduction and response through:
Integration of programme, resource management and coordination, and
Streamlining and standardization of operational, administrative and financial
practices related to disaster reduction and response."
"The nation's next major response and recovery challenge, whether natural or man-made, will provide another important test of FEMA's efforts to improve its preparedness and capability. Although organizational structure is important, future success is likely to principally depend upon focus, skilled leadership, clear roles and responsibilities, operational plans realistically exercised, and key resources appropriately and effectively deployed."—What GAO Found.
"The performance of any not-for-profit corporation is affected by many variables,
such as its governance, resources, by-laws, quality of personnel, and its partnerships
with other entities. This report examines just one of these variables, the congressional charter of the ANRC. The report provides an overview, history, and analysis of the present charter of the ANRC and its two earlier versions. This focus on the ANRC's charter is justified on two counts. First, the charter of a corporation may be its most fundamental organizational keystone. A charter sets forth a corporation's organizational structure, goals, and the means for governmental oversight of its activities. Second, the charter is the aspect of the ANRC that is most under control of Congress, and some Members have expressed an interest in
considering alterations to the charter of the ANRC."—Summary.
"This report examines (1) the statutory authorities and coordinating mechanisms of the President (acting through the Secretary of Homeland Security) and the Secretary of HHS in providing routine assistance, and in providing assistance pursuant to emergency or major disaster declarations and/or public health emergency determinations; (2) mechanisms to assure a coordinated federal response to public health and medical emergencies, and overlaps or gaps in agency responsibilities; and (3) existing mechanisms and potential gaps in financing the costs of a response to public health and medical emergencies."—Summary.
"Ample evidence is at hand that a national disaster response protocol is urgently needed if we are to ensure that irreplaceable cultural collections are not needlessly lost. This protocol must be able to be activated quickly to deliver appropriate assistance to affected institutions and, accordingly, be unencumbered by day-to-day bureaucracies that historically have delayed response time and increased collection damage. This essay describes two recent large institutional catastrophes as well as the damage wrought by Hurricane Katrina, an unprecedented U.S. regional disaster, in an effort to underscore the importance of creating a nonprofit entity—the National Disaster Center for Cultural Property (NDC)—capable of implementing an effective response in situations where local resources and expertise are overwhelmed and cultural property is at risk."
The Report covers the work of the Legislature's Office of Emergency Service and makes suggestions for what OES should be doing to improve California's ability to respond to a catastrophic event. It criticizes the lack of integration and unity of emergency response services among state, local, and private providers. More hopefully, the Report describes
that funding is available from the federal government to help the state move forward and suggests ways to better target funding. Finally, the Report concludes by stressing the need for greater accountability for both the planning and effectiveness of programs.
"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.
"The failure of local, state, and federal governments to respond more effectively to Katrina ? which had been predicted in theory for many years, and forecast with startling accuracy for five days ? demonstrates that whatever improvements have been made to our capacity to respond to natural or man-made disasters, four and half years after 9/11, we are still not fully prepared. Local
first responders were largely overwhelmed and unable to perform their duties, and the National Response Plan did not adequately provide a way for federal assets to quickly supplement or, if necessary, supplant first responders."
+United States Deparment of the Interior (DOI), Office of Inspector General, DOI's 2005 Hurricane Relief Expenditures (Report no. C-IN-MOA-0004-2006) (March 2007) (PDF — 697K)
"The devastating hurricanes of 2005 had a two-fold impact on DOI. First, DOI was called upon to assist in the federal relief efforts under the National Response Plan (NRP). Second, DOI's bureaus were greatly affected by the disasters. DOI sustained significant damage to 12 parks and preserves, 86 refuges, 68 water monitoring gauges, and the Mineral Management Service's (MMS) Gulf of Mexico Regional Office. As of September 30, 2006, DOI spent approximately $104 million on hurricane relief and recovery. This included approximately $61 million for NRP activities and $43 million to respond to and address internal damage.
"We are pleased to report that overall, the bureaus effectively managed their 2005 hurricane-related expenditures. Given the magnitude of the damage sustained to the Gulf Coast and DOI facilities, the issues we identified through our expenditure testing were relatively insignificant, and the bureaus performed well."—Earl E. Devaney, Inspector General.
"During the hurricane, personnel and the facility lost communications capabilities and the testing mission was not readily available for client use because no alternate means of testing was available. As a result, the [Defense Information Systems Agency Continuity of Operations and Test Facility (DCTF)] testing mission was halted for 3 weeks following Hurricane Katrina (finding A). Also, the Command and Control Guard system, located at DCTF, could not continue real-time data processing following Hurricane Katrina. As a result, U.S. Army Europe, one of the primary DCTF Command and Control Guard users, lost real-time logistics data for 19 days (finding B). (See the Findings section of the report for the detailed recommendations). We identified internal control weaknesses at the DISA DCTF and the Global Combat Support System Program Management Office over the planning and protection of information technology resources."—Executive Summary.
"We performed this audit to determine whether obligations and expenditures related to the Hurricane Katrina relief efforts at selected DoD Components were executed efficiently, timely, and in accordance with applicable laws and regulations. DoD Components performed their FEMA mission assignments for the Hurricane Katrina relief efforts in a timely manner. DoD accounting for the obligations and expenditures complied with applicable laws. However, the Under Secretary of Defense (Comptroller)/Chief Financial Officer issued reimbursement guidance that was in conflict with existing DoD Directives and the DoD Financial Management Regulation. DoD Components could not readily reconcile obligations to individual FEMA mission assignments or funding documents, and DoD may have excess unobligated reimbursable funding authority related to the hurricane relief efforts that DoD needs to inform FEMA to de-obligate. Also, DoD did not bill FEMA in a timely manner, and the daily and
monthly cost reports prepared by the DoD Components did not provide accurate data to
DoD decision makers."—Executive Summary, Results.
"The Department of Energy's Strategic Petroleum Reserve consists of underground caverns currently holding nearly 700 million barrels of crude oil. The Reserve's primary energy security mission is to maintain drawdown readiness to mitigate the impact of a
severe crude oil supply disruption. To achieve this goal, the Reserve must be prepared to
promptly restore operations and schedule the flow of crude oil to refineries, even in the
midst of a major disaster. The Reserve sites are located in the heart of the Gulf Coast
region of the United States, an area prone to hurricanes and major storms. In such an environment, continuity of operations is especially challenging....
"We found that the Department used the Reserve and its assets with great effectiveness to address emergency energy needs in the crisis surrounding Katrina and Rita. Despite being in the path of the hurricanes' destruction, the Reserve promptly fulfilled requests for oil from refineries suffering from storm-induced supply shortages. Within four days of Hurricane Katrina's landfall, oil was sent to requesting refineries. Overall, the Reserve provided almost 21 million barrels of crude oil to refiners through loans and sales. To their credit, the Reserve's management and staff reacted magnificently under extremely difficult circumstances."—Gregory H. Friedman, Inspector General, Memorandum for the Secretary (December 5, 2006)
"We conducted a review of FEMA's activities in response to Hurricane Katrina, which details FEMA's responsibilities for three of the four major phases of disaster management—preparedness, response, and recovery—during the first five weeks of the federal response. In addition, we evaluated
FEMA's preparedness and readiness efforts over the past ten years to determine its organizational capability and posture prior to Hurricane Katrina."—Executive Summary.
An extensive report of assessments of Federal and State evacuation plans, including findings and recommendations relating to decision making and management, planning, public communication and preparedness, evacuation of people with special needs, evacuation operations, sheltering, and training and exercises.
"Despite the understanding of the Gulf Coast's particular vulnerability to hurricane devastation, officials braced for Katrina
with full awareness of critical deficiencies in their plans and gaping holes in their resources. While Katrina's destructive force could not be denied, state and local officials did not marshal enough of the resources at their disposal."—Executive Summary.
"Disaster planning for health care providers following the September 11, 2001, terrorist attacks and, more recently, Hurricane Katrina, focuses on preparing hospitals and other emergency services to respond to victims' medical needs. But little attention has been paid to the challenges that providers would face resuming normal operations after the catastrophe. A large-scale disaster could create unprecedented demand for health care and emergency services. Hospitals already struggle to meet the high demand for and high costs of emergency care, and they would face additional challenges in the aftermath of a catastrophic event. Strained capacity and financial reserves may force hospitals to close, just as occurred with the two largest public hospitals in New Orleans following Katrina. To prevent the initial terrorist-related or natural disaster from spiraling into a lasting access-to-care crisis, this Article proposes a government disaster relief plan to stabilize the health care industry before the next catastrophe and prevent interruption of services during the recovery." —Abstract.
