Wednesday, September 07, 2005

Declaring an Emergency: Supplementing the Assistance or Coordinating the Administration of Releif?

I’m no expert in the arcane realm of administrative law that runs federal agencies, but I’ve been trying to make sense of exactly what in means to have a state of emergency declared and what it means for federal authority over state and local officials.

Based on this timeline (though from a lefty site it seems, based on the supporting documentation/links, pretty accurate in regards to timing of certain key events before Katrina):

1) On Friday, August 26th Governor Blanco declares a State of Emergency in Louisiana

2) On Saturday, August 27th, 5 AM, Hurricane Katrina is upgraded to a Category 3

3) On Saturday, August 27th, Governor Blanco asks President Bush to declare a State of Emergency

4)On Saturday, August 27th, President Bush declares a State of Emergency for Louisiana – 2 days before the storm hits

At this point, what if anything changed in regards to federal authority? First, lets look at Blanco’s request:

“I have determined that this incident is of such severity and magnitude that effective response is beyond the capabilities of the State and affected local governments, and that supplementary Federal assistance is necessary to save lives, protect property, public health, and safety, or to lessen or avert the threat of a disaster. I am specifically requesting emergency protective measures, direct Federal Assistance, Individual and Household Program (IHP) assistance, Special Needs Program assistance, and debris removal.”


She is admitting that responding to the coming hurricane will be beyond the ability of state and local government, but only wants supplemental help. Does this mean she would still control the state’s response? She goes on to say:

“I request Direct Federal assistance for work and services to save lives and protect property…In accordance with 44 CFR § 206.208, the State of Louisiana agrees that it will, with respect to Direct Federal assistance:

1. Provide without cost to the United States all lands, easement, and rights-of-ways necessary to accomplish the approved work.
2. Hold and save the United States free from damages due to the requested work, and shall indemnify the Federal Government against any claims arising from such work;
3. Provide reimbursement to FEMA for the non-Federal share of the cost of such work in accordance with the provisions of the FEMA-State Agreement; and
4. Assist the performing Federal agency in all support and local jurisdictional matters.In addition, I anticipate the need for debris removal, which poses an immediate threat to lives, public health, and safety.”

Still this does not make it clear who will be in charge?

Now let’s look at Bush’s declaration:

“The President today declared an emergency exists in the State of Louisiana and ordered Federal aid to supplement state and local response efforts in the parishes located in the path of Hurricane Katrina beginning on August 26, 2005, and continuing.

The President's action authorizes the Department of Homeland Security, Federal Emergency Management Agency (FEMA), to coordinate all disaster relief efforts which have the purpose of alleviating the hardship and suffering caused by the emergency on the local population, and to provide appropriate assistance for required emergency measures, authorized under Title V of the Stafford Act, to save lives, protect property and public health and safety, or to lessen or avert the threat of a catastrophe.”


This says the feds are to supplement state and local efforts, yet it also authorizes Department of Homeland Security and FEMA to coordinate all relief efforts caused by the storm. Does this mean that Feds authority starts the minute the storm hits? Does this mean they should be assisting with and/or coordinating with first responders as well as all following efforts? Does it mean that once the storm hits they have authority over state and local agencies? Does it make sense that to accomplish this legal obligation, if that is what it is, planning prior to the event is required by the Feds? (I’m thinking specifically of short term planning in the 2 days prior to the storm, and I’m not saying it didn’t happen.)

Both the governor’s statement and Bush’s statements provide no clear indication of who is in charge, are very formal and governed by the Stafford Act, which I’ve just read.

Here are a few of the more relevant sections (all emphasis added):


5143. COORDINATING OFFICERS {Sec. 302}


a. Appointment of Federal coordinating officerImmediately upon his declaration of a major disaster or emergency, the President shall appoint a Federal coordinating officer to operate in the affected area.
b. Functions of Federal coordinating officer In order to effectuate the purposes of this Act, the Federal coordinating officer, within the affected area, shall--
1. make an initial appraisal of the types of relief most urgently needed;
2. establish such field offices as he deems necessary and as are authorized by the President;
3. coordinate the administration of relief, including activities of the State and local
governments, the American National Red Cross, the Salvation Army, the Mennonite Disaster Service, and other relief or disaster assistance organizations, which agree to operate under his advice or direction, except that nothing contained in this Act shall limit or in any way affect the responsibilities of the American National Red Cross under the Act of January 5, 1905, as amended (33 Stat. 599) [36 U.S.C. §§ 1 et seq.]; and;
4. take such other action, consistent with authority delegated to him by the President, and consistent with the provisions of this Act, as he may deem necessary to assist local citizens and public officials in promptly obtaining assistance to which they are entitled.;
5. State coordinating officer When the President determines assistance under this Act is necessary, he shall request that the Governor of the affected State designate a State coordinating officer for the purpose of coordinating State and local disaster assistance efforts with those of the Federal Government.


Here it seems that the individual appointed to run the federal efforts during a disaster is charged with “coordinating” relief efforts but “assisting” in obtaining post-disaster assistance. What isn’t clear to me is what the difference is? If I’m reading this correctly, this official is to organize federal, state, local, and volunteer agencies during the immediate relief efforts. Then help citizens and local officials apply for monetary and material aid for recovery. But this is not clear, and assisting and coordinating can be very different things.


§ 5170. PROCEDURE FOR DECLARATION {Sec. 401}

All requests for a declaration by the President that a major disaster exists shall be made by the Governor of the affected State. Such a request shall be based on a finding that the disaster is of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments and that Federal assistance is necessary. As part of such request, and as a prerequisite to major disaster assistance under this Act, the Governor shall take appropriate response action under State law and direct execution of the State's emergency plan. The Governor shall furnish information on the nature and amount of State and local resources which have been or will be committed to alleviating the results of the disaster, and shall certify that, for the current disaster, State and local government obligations and expenditures (of which State commitments must be a significant proportion) will comply with all applicable cost-sharing requirements of this Act. Based on the request of a Governor under this section, the President may declare under this Act that a major disaster or emergency exists.
(Pub. L. 93-288, title IV, § 401, as added Pub. L. 100-707, title I, § 106(a)(3), Nov. 23, 1988, 102 Stat. 4696.)

In conjunction with the request to declare an emergency, it seems clear, at least in this section, that the Governor still has a responsibility to execute state emergency plans

§ 5170a. GENERAL FEDERAL ASSISTANCE {Sec. 402}

In any major disaster, the President may--
1. direct any Federal agency, with or without reimbursement, to utilize its authorities and the resources granted to it under Federal law (including personnel, equipment, supplies, facilities, and managerial, technical, and advisory services) in support of State and local assistance efforts;
2. coordinate all disaster relief assistance (including voluntary assistance) provided by Federal agencies, private organizations, and State and local governments;
3. provide technical and advisory assistance to affected State and local governments for--
A. the performance of essential community services;
B. issuance of warnings of risks and hazards;
C. public health and safety information, including dissemination of such information;
D. provision of health and safety measures; and
E. management, control, and reduction of immediate threats to public health and safety; and
4. assist State and local governments in the distribution of medicine, food, and other consumable supplies, and emergency assistance.
(Pub. L. 93-288, title IV, § 402, as added Pub. L. 100-707, title I, § 106(a)(3), Nov. 23, 1988, 102 Stat. 4696.)

Here it seems after the emergency declaration the president can choose whether the federal role will be in support, to coordinate, or assist.

§ 5170b. ESSENTIAL ASSISTANCE {Sec. 403}


a. In generalFederal agencies may on the direction of the President, provide assistance essential to meeting immediate threats to life and property resulting from a major disaster, as follows:
1. Federal resources, generallyUtilizing, lending, or donating to State and local governments Federal equipment, supplies, facilities, personnel, and other resources, other than the extension of credit, for use or distribution by such governments in accordance with the purposes of this Act.
2. Medicine, food, and other consumablesDistributing or rendering through State and local governments, the American National Red Cross, the Salvation Army, the Mennonite Disaster Service, and other relief and disaster assistance organizations medicine, food, and other consumable supplies, and other services and assistance to disaster victims.
3. Work and services to save lives and protect propertyPerforming on public or private lands or waters any work or services essential to saving lives and protecting and preserving property or public health and safety, including--
A. debris removal;
B. search and rescue, emergency medical care, emergency mass care, emergency shelter, and provision of food, water, medicine, and other essential needs, including movement of supplies or persons;
C. clearance of roads and construction of temporary bridges necessary to the performance of emergency tasks and essential community services;
D. provision of temporary facilities for schools and other essential community services;
E. demolition of unsafe structures which endanger the public;
F. warning of further risks and hazards;
G. dissemination of public information and assistance regarding health and safety measures;
H. provision of technical advice to State and local governments on disaster management and control; and
I. reduction of immediate threats to life, property, and public health and safety.
4. Contributions Making contributions to State or local governments or owners or operators of private nonprofit facilities for the purpose of carrying out the provisions of this subsection.
b. Federal share The Federal share of assistance under this section shall be not less than 75 percent of the eligible cost of such assistance.


c. Utilization of DOD resources


1. General rule During the immediate aftermath of an incident which may ultimately qualify for assistance under this title or title V of this Act [42 U.S.C. §§ 5170 et seq. or 5191 et seq.], the Governor of the State in which such incident occurred may request the President to direct the Secretary of Defense to utilize the resources of the Department of Defense for the purpose of performing on public and private lands any emergency work which is made necessary by such incident and which is essential for the preservation of life and property. If the President determines that such work is essential for the preservation of life and property, the President shall grant such request to the extent the President determines practicable. Such emergency work may only be carried out for a period not to exceed 10 days.

Here it seems that the president is given fairly broad powers to provide assistance in an emergency. Yet, as a general rule, military assistance should be requested by the governor.

What is missing from this very brief analysis is the accepted, or precedent, for the way these laws are general interpreted. If there is an expert in this area, please comment.

Despite my lack of expertise, it seems to me that the Stafford Act does not make it clear who is in charge after the president declares a state of emergency. It does seem the federal government can assume a fairly strong leadership role to direct and coordinate efforts in the immediate aftermath of a disaster, once a state of emergency has been declared. However, it’s not clear that it is required by law, even if it is expected by citizens, or that state and local officials surrender their control.

Once the finger pointing stops (if it does and yes, I’m guilty of it) and people look to improve our response to the next disaster (if that is possible in light of mother nature’s power) I would encourage lawmakers to not only re-examine who responds, but also the laws for declaring states of emergencies and establishing chains of command in a major disaster—because ponderous bureaucratic rules seem to lead to ponderous bureaucratic responses.

1 Comments:

At 3:46 PM, Blogger The Iconic Midwesterner said...

You are right this is a headache inducing set of rules if I've ever seen one. I'm wondering if the provision about "cooridinating officer" establishes legal authority for someone to head up an ad hoc orginazation (akin to the one Hoover ran after the great flood (of 1923?).) Is there a difference between calling some place a "disaster area" and calling it a "MAJOR disaster area"? It seems to me I have never heard of a specific individual charged with this type of coordination, unless it just always went to the FEMA head so no one bothered to mention it.

(I also found it interesting that the Stafford Act mentions the Mennonite Disaster Service by name. I've never heard of this before.)

 

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