Sunday, October 31, 2010

The All-Hazards Mandate!

Section 503 of PKEMA 2006 in one of its many provisions mandates the following guidance to the Administrator of FEMA:
‘‘(b) ALL-HAZARDS APPROACH.—In carrying out the responsibilities under this section, the Administrator shall coordinate the implementation of a risk-based, all-hazards strategy that builds those common capabilities necessary to prepare for, protect against, respond to, recover from, or mitigate against natural disasters, acts of terrorism, and other man-made disasters, while also building the unique capabilities necessary to prepare for, protect against, respond to, recover from, or mitigate against the risks of specific types of incidents that pose the greatest risk to the Nation.’’

Okay so FEMA is supposed to be all-hazards and post for today is to ask the question is it?

Well we know that if there is a Presidential declaration of Disaster or Emergency under the Robert T. Stafford Disaster Relief and Assistance Act, Public Law 100-707, which supplemented in part, rescinded in part, and amended in part the Disaster Relief Act of 1973 (Public Law 93-288) then FEMA can provide information and funding to other federal agencies and the STATES and their local governments.

If no declaration then the cupboard is largely bare for FEMA. There are other federal compensations schemes however defective or inadequate. For example, the NCP created under E.O. 12616 and E.O. 12777, and of course the Price-Anderson Act up for renewal every 15  years. What is remarkable is that NO legal opinion exists anywhere in any General Counsel or Chief Counsel office of the Executive Branch, or the Office of Legal Counsel of the Department of Justice, or the GAO or otherwise that has been made public that discusses the interrelationships of these various compensation schemes with the Stafford Act or discusses gaps in funding. All Commentators seem to agree that the STAFFORD ACT is NOT an all-hazards statute. STill it would be nice to know what gaps FEMA's believes exist. Over a decade ago the NGA took the position in a formal recommendation to the federal establishment that core-melt accidents be specifically addressed in the STAFFORD ACT.  And then of course post-9/11 many recommended that the STAFFORD ACT be specifically addressed to cover terrorism. Since a declaration by the President no matter how improper legally is totally insulated from judicial review and such a challenge is unlikely due to present rules on standing it continues to be the case that as far as declaration authority the President is largely above the law.

What makes the "New" FEMA compliant with the mandates of  PKEMA 2006 with respect to- all-hazards?  I would argue that FEMA is not even organized on an all -hazards basis and each component often has little understanding of other hazards not part of its portfolio and in fact has never conducted research legal or adminsitrative to see if any of the legal authority for any specific hazard for which they are administratively responsible might have all-hazards utility. A specific statute that might be suitable for such review is the EMERGENCY FOOD & SHELTER PROGRAM with authority under the so-called McKinney Act which might usefully be viewed as an emergency statute flexible in providing legal authority for ESF-6 Mass CARE and even other functions in any large scale events.

So my conclusion is that although mandated to be all-hazards FEMA has not done the basics, even organizationally, to in reality be all-hazards but counts on the willingness of any given President to violate legislative stricttures by a declaration to fulfill expectations of Congress and the residents of the US. This fundamental flaw could be easily corrected but it has not because few in the Excecutive Branch or Congress want to look at the Forest and not just the trees.

And DHS of course in not in anyway to be considered an all-hazard organizational entity but continues to focus on counter and anti-terrorism and its compartemented missions.