Friday, April 9, 2010

My Participation on Disaster Law List-Serve

This AM sent out the message set forth below:

I have recently again received criticism from one individual whom I respect that he really never opens my e-mails to the list. One might ask why he is on the list but I don't ask that because others do provide some very interesting items--at least interesting to me.
Despite 20 years laboring in FEMA OGC from 1979-1999 I never actually was the primary disaster lawyer although for brief intervals I did have supervisory authority over it. There were many other interesting things to do involving FEMA including keeping the agency from being abolished and of course I did run the litigation for well over a decade.
I have come to believe that I was never made fully accountable for the disaster program for two primary reasons. First, I believed that the grant of discretion to the President in the Stafford Act and its predecessor statute was broad. Each action of FEMA under the Presidential delegation did not have to have a specific authorization in the statute but in fact a generic tasking was adequate. In other words FEMA was supposed to be the EXPERT agency and would develop, implement and operate the President's disaster relief program. Again note it is the only federal grant program triggered directly by the President. Each time FEMA took the position it did NOT have the authority and the issue was reviewed by OLG of the Department of Justice, FEMA authority to act was upheld and the restrictive view overturned. This is in the documentary record between DOJ and FEMA.

Secondly, I long believed that while the President did have discretion to declare a disaster or emergency or not once that declaration occurred then due process, equal protection applied fully under the Constitution and that FEMA should make every effort to comply with Constitutional mandates. Instead the actual position of FEMA was that it had complete discretion even post-declaration as to its grantees.

Well the issues still are out there. I am more than happy to withdraw from submitting comments or items for the list. Well maybe not. But I have no idea who is on the list or how it is received but do it as a matter of faith that it is of some utility.

I have recently started blogging on my own at

That blog is largely FEMA centric and not disaster centric. There is much of importance that FEMA does that is not quite understood by those who only see it as a disaster relief agency.

I have asked Dan Farber for some input also.

I guess in this case silence deems consent. So if I hear nothing I will continue to submit items to the list. If the comments are overwhelmingly negative or even substantial negative I will be glad to keep reading the list but withdraw as a submitter.

Perhaps one further footnote. The National Security apparatus has long coveted the President's Disaster Relief Fund for its needs. That can be documented. And in fact for the first years of permanent disaster relief under Public Law 875 of the 81st Congress (1950) DOD did administer the disaster relief program. Almost 95% of the nation-states of the world have their military running ALL disaster relief. I see it as largely a civilian function but hey I am not the decider. Powerful members of Congress and very intelligent ones also have advocated that it be a DOD responsibility and in particular around the time of Hurricane Hugo in 1989.

Again, standing by!


Comments on this blog also welcome.