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 HOUSE.gov!

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.

Legal Doctrine-American Tort Law and the FEDS

Hey once was a lawyer, and inactive in VA Bar since retiring from FEMA in October 1999, but still paying bar dues until age 70 under VA BAR rules. So this is NOT a legal opinion.

American tort law controls not just the development of the law in the 50 respective states but also federal tort causes of actions for money damages because federal case law relies on the individual tort law of the 50 states. Federal law also relies on state law to determine property and interests in property. In other words there is NO federal tort or property law as far as legal doctrine. Civil and criminal liability including damages and fines are based on statutory enactments but even those often turn on STATE law. Prime example of course is that the Internal Revenue Code often impacts transfers of property but defining what that property is by IRS turns on STATE law. Complicated yes but that is the system.

The recent OIL SPILL has raised issues of compensation. Will the feds use any common law theories to recover or any of the plaintiffs? Well unknow what theories but recently the STATE of IOWA Supreme Court allowed a trial court to proceed in claims for money damages against a municaplity for road work that aggravated flooding. An active program of subrogation under the NFIP [National Flood Insurance Program] existed from 1978 to 1991 including often the waiving of NFIP subrogation rights in order to encourage flood plain management as part of the recovery against flood damage sources.
That stated what is the basic tort regime in the US assuming no strict liability. That doctrine existed from the creation of the concept at common law that some activities were so dangerous as to require strict liability. In most if not all states now comparative negligence has caused the concept of strict liability to fall by the wayside. In LA for example strict liability is incurred according to my information only by blasting and pile driving.
And in passing I should state that the statutory claimancy for the oil spills to the extent I have knowledge are completely inadquate for recovery of damages even by the FEDS under the CWA (So-called Clean Water Act, enacted in 1972 as the Water Pollution and Congrol Act) and the Oil Spill Liability concepts created under the Oil Pollution Act of 1990 previously discussed on this blog. There may be however, common law remedies that courts could still look to and looking like they will be explored by the courts over the next two decades.
So back to the tort regime in the US and note that efforts to change that underlying regime over three decades by the insurance business and corporations led by Victor Swartz largely failed but probably did have the indirect impact of levening the jury awards for torts often limited on appeal in any event.

So here is the system now in the US.

First there must be a "standard of care" that can be identified. This can be complicated but as an example at one time when a member of the medical profession was sued for malpractice the standard of care was the standard in that particular community. Now the standard of care for the medical profession is a national standard led by the development of MEDICAL Library of NIH and other things all readily accessed and mandatory continuing educational requirements. What the standard of care is in oil spills is unknown to me but there also is case law indicating the CWA creates by its statutory scheme a premptive concept under the Commerce Clause of the Constitution but not sure even how that plays out without detailed examination of US case law.
The second step in the tort regime in the US is to determine whether in fact there has been an injury. Sounds simple, not really.
Third, whether the breech of the Standard of Care caused the injury. And also determining "but for" the breech of the standard there would be no injury!
Fourth, whether the first three categories were met and in fact there was harm caused.
Fifth, how much harmed was caused (measure of damages) and therefore how much can be recovered.

If this process seems difficult to understand it is. Chain of causation under the so-call Palzgraff doctrine really is not the test of events and led to arcanary in the tort recovery process for over half of decade but ultimately proved a fool's errand to some extent. IN the NFIP for example, perhaps erroneously, claims for flood damages ignore causation such as did the flooding river knock down the tree which knockned down the house. Note the coverage for damages "by and from flood" in the NFIP policy coverage language.

Hoping this explains to some extent why hundreds of lawyers seem to be lining up to spend the rest of their legal lives (and maybe actual lives) on this oil spill event. Note that the FEDS and citizens are largely precluded from suing the states for money damages under the 11th Amendment. That limitation has yet to be fully explored by the courts of the US, IMO.