Sutherland on "Statutory Construction" remains in its various editions the legal bible of analysis of the language of statutes. The SCOTUS (Supreme Court of the US) has in the last two decades severely restricted recourse to legislative history in interpretation of statute language. Either the Statute does or does not accomplish the Congressional intent and no need to look at what Congress was trying to accomplish. The Lobbying World that plagues Washington DC and its efforts has thrived on that interpretation by SCOTUS. For others to analyze.
My issue is simpler! The Robert T. Stafford Disaster Relief and Emergency Assistance Act has never specifically addressed incidents/events involving terrorists. Nor radiological releases. Nor oil spills.
What might be of interest is that the US House of Representatives in the year 2000 passed legislation addressing two of the big three. And note it is not beyond reason that all could be related. Did the offshore explosion provide the Obama Administration with the context for a Stafford Act declaration of disaster? Probably! But relying on history [EXXON VALDEZ] and the notion that another specific federal response plan was adequate no declaration has followed. Perhaps the fact that the DRF [Disaster Relief Fund] was very low and needed replenishment by Congress which may not do so for a while was a factor.
So where does this leave the US? With more uncertainty then ever about where, when, how, why, who will respond to any large scale domestic civil crisis. Interesting that diminishing uncertainty is one of the goals of Emergency Management. Not that efforts or plans will always succeed bu that everyone understand current plans and capabilities. So what does this have to do with statutory construction?
Well there is no one in the US who has standing to attack the declaration or non-declaration of a disaster or emergency by the President under the Stafford Act. If there existed someone with that standing the next declaration for a terrorist event could theoretically run afoul of the principle that where a specific legislative approach was considered by Congress and rejected with respect to a current statutory scheme [yes that is the language used but not to suggest a conspiracy or fraud] then the statute CANNOT be used for that purpose.
Perhaps it is time to reduce the uncertainty created by the grant of discretion given to the President in the Stafford Act. Either by given standing to sue to someone or else revising the language to cover specific types of occurrences that can be foreseen. Certainty is never full achieveable but it should be noted that one reason the NFIP [National Flood Insurance Program] was enacted in 1968 was to reduce the vageries caused by uncertain federal disaster relief efforts.
At the same time the interstitial space between various federal response plans needs hard work by competent people in a hurry because we are about to watch the people on the GOM fall into the gaps in federal planning and response mechanisms.
