In the January 2009 Natural Hazards Observer I wrote a letter to the editor about the non-declaration of an emergency or disaster under the then current disaster legislation known by some as the Robert T. Stafford Disaster Relief and Emergency Assistance Act. That statute (Public Law 100-707) amended in part, supplemented in part, and repealed in part the Disaster Relief Act of 1974 (Public Law 93-288. The letter explained some history of that non-declaration. What it did not contain was the document that was given to the Senate Appropriations Committee explaining the non-declaration.
That piece of the puzzle is avail now from this blogger.
We now after almost 2 months again have a non-declaration situation in the BP oil spill situation. It appears that the rationale for the non-declaration in Exxon Valdez is now being used by this administration to argue that the plan published in the CFR at 40 CFR Part 300 is adequate. Whether or not the escrow fund is ever created now appears 24 hours after its announcement to be in some doubt. BP wants a firm cap at $20 B and the administration argues that is only a starting point. So stay tuned.
What is important is the exercise of discretion by the President not to declare a Stafford Act disaster or emergency. Could he yes? Will he? Not sure! But the non-declaration so far has in fact yielded an important policy issue that has not yet been discussed until this blog post!
First, if the rationale of the non-declaration in Exxon Valdez is used several consequences follow: First, legal enforcement of civil and criminal penalties against those who caused the incident/event must be pursued not just diligently but first before any relief to citizens of the US by its government. This is ridiculous for the following reasons: First that process is slow and cumbersome. Second, a declaration of disaster or emergency exonerates no one from their other legal responsiblity for damages or wrongdoing.
Second: If the rationale provided to the Senate Committee informally by the Office of Congressional Relations in FEMA after the appropriations hearing which covered Exxon Valdez then FEMA should always include a detailed analysis in its declaration recommendations to the President a complete analysis of all other applicable law with respect to any given incident/event. Well with an Office of Chief Counsel of 70 people including paraglegals, FEMA is not up to the this questionable practice. But hey the Department of Justice should be more than up to it.
So before they pain and suffering and losses of the American people are ignored like they were at EXXON VALDEZ and now in the BP Oil Spill then let's have the Office of Legal Counsel at DOJ prepare a comprehensive list of all statutory schemes that are so pervasive and comprehensive that should they fail in their protection of public health and saftety they should still result in the PRESIDENT not declaring a disaster or emergency.
We need to know that now not later as the interested public. Need an example? What is the interplay of the Stafford Act and the Price-Anderson Act concerning nuclear power? This question has never received a ruling from the Department of Justice despite in formal testimony before Congress the Commission On Federal Response to a Catastrophic Nuclear Accident declared that the Stafford Act had NO applicability to such an event. Then in an effort to avert the logical consequences of this testimony the NRC Commisssion staff, later approved by the full Commission, issued a document NUREG 1437 [sic] arguing that the Stafford Act fully applied to such a castrophic event. This was published with the signature of a low-level FEMA civil servant and NO legal review was sought.
So before the next Core-Melt Accident (the last was TMI) let's pin this down. Good luck OLC but time you earned you pay when not trying to avoid due process for US citizens that are rightfully labeled terrorists.
