Friday, October 28, 2011

Fugate Claims New Legal Authority under PKEMRA 2006

Administator W. Craig Fugate testified before the House Homeland Security Committee on Tuesday October 25th. His testimony and video of entire hearing still on the Committee website at!

In his response to questions, Adminstrator Fugate claimed that the Stafford Act is no longer the be all and end all of response. But that in fact PKEMRA 2006 fixed some broken reeds in FEMA response and in particular the leaning forwards aspects of response to disasters.

Some history. The George H.W. Bush administration argued to the Congress's investigative arm that a statutory change would be necessary to the STAFFORD ACT if FEMA was to be forward leaning in disasters. This claim was fundamental to its defense of its organizational performance in Hurricane Andrew that made landfall in August 1992. The Stafford Act was never formally modified to reflect this position. And perhaps oddly the George H. W. Bush Administration used so-called PUSH packages to lean forwards in response to Hurricane Iniki in Hawaii in late 1992.

Only an insider to OGC legal policy formulation could understand this debate. I was often asked by new General Counsels in the independent FEMA OGC during my service from 1979-1999 to brief them on an open-ended basis as to items they should be concerned with. Usually my briefings were very short, most less than 5-15 minutes depending on the questions I was asked.

I will pick on John Carey the first Demoratic GC of FEMA after the position was made political by the George H.W. Bush Administration, a non-career SES. I had received WH calls twice asking whether it should be career or non-career and somewhat odd since I was a GS-15 who had once applied for it indirectly in 1985.
I said I thought the career GCs were being rolled and excluded too often by the political appointees in crucial situations so that the position should be non-career. It was made an dual appointed position eventually and could be held by either a career or non-career lawyer. At least one later paid a $25,000 fee to become the GC of FEMA as a campaign contribution. No names please.

So what did I tell Mr. Carey! I told him that few of the FEMA Directors to-date had been proactive and few even were willing to view FEMA as an operational entity as opposed to an organization that served the WH and its minions and policies. Many WH directives to FEMA had been orchestrated by OMB and that was an OMB that wanted FEMA to do as little as possible with respect to funding disaster response and recovery. In fact an argument could be mounted that OMB supported the creation of FEMA only to reduce the federal role in disasters. That did not happen of course. But OMB still tried to accomplish that goal in many direct and indirect ways.
Anyhow I told Mr. Carey that there were a mountain of OGC opinions that opined FEMA had little or no authority to do much of anything. Certainly not be a creative organization in disaster response. So I said that I viewed Mr. Carey's principal client, Director Witt, as more proactive [which he was] and he would have to decide the validity of those prior OGC opinions. The key legal opinions were given by me to the head of the NAPA team that wrote the report "Coping With Castastrophe" released in February 1993. There was a legal appendix to that report that was never published. I have made it available in both the original version and my annotated version to requesters. Largely an opinion by an outstanding and then retired career SES lawyer John Bell it should be required reading for any involved in EM and in particular noting the application of the NAPA report, the appendix, and FEMA OIG reports on Hurricane Andrew in light of Hurricane Katrian response 13 years later.

Mr. Carey chose not to modify the prior opinions but to await Director Witt's requests! Strangely and perhaps necessarily Director Witt made few formal requests to FEMA OGC for opinions. I did have cards printed with the broadest discretionary mandate to him in any FEMA legislation and distributed them to Director Witt in the form of 50 copies of plasticized wallet cards. Director Witt's comment to me on receiving those cards was of interest! He said to me "you mean I have that much authority?" and I replied "yes'!

So back to PKEMRA 2006 as a statute vesting legal authority in the Adminstrator FEMA! Obviously some opining officially or unofficially has been done by the OCC [Office of the Chief Counsel] in FEMA as to authority granted to the Administrator to pre-position and moreover to do even more prior to any declaration. I would like to see that opinion. I would suggest that authority to stockpile could arguably contain authority to utilize but given FEMA past legal opining that would be a revolution. While almost no basis exists for legal challengs to disaster ops that case law so far applies only to the STAFFORD ACT!

Personally I have always favored FEMA leaning forwards ever since having to defend FEMA to GAO in the TMI core-melt accident that was NEVER declared a disaster but much effort was expended in case it had been declared.