Chapter 1 Catastrophic Events, the Law, and Federalism

LibraryHomeland Security and Emergency Management: A Legal Guide for State and Local Governments (ABA) (2018 Ed.)
CHAPTER 1 Catastrophic Events, the Law, and Federalism
Ernest B. Abbott, Alan D. Cohn, Wendy Huff Ellard, and Otto Hetzel

In our federal system, state and local government officials bear the responsibility for understanding the scope and limitations on their authority, and are responsible for devising effective plans, procedures, and protocols that make that authority operational and facilitate its exercise during incident response.

Virtually all learned scholars, emergency management professionals, and environmentalists agree—natural disasters are occurring with increasing frequency1 and are becoming progressively more severe.2 At approximately $65 billion3 in damages alone, Hurricane Sandy, which occurred in October 2012, was the worst natural disaster in the United States in terms of economic loss, destruction of property, and loss of human life since Hurricanes Katrina and Rita in 2005. The increasing costs associated with these disasters is one of the primary factors influencing the landscape of response and recovery authority. States generally enjoy greater autonomy when it comes to managing response efforts and long-term recovery; however, the great majority of states (if not all) are painfully aware that the costs of these efforts simply cannot be shouldered without significant financial support from the federal government.

Additionally, the very nature of the modern disaster event has made issues of federalism and states' rights increasingly more complex. Disasters are frequently more widespread, crossing borders and even spanning multiple geographic regions in extreme cases. For example, Superstorm Sandy affected 24 states, including the entire Eastern Seaboard from Florida to Maine and west across the Appalachian Mountains to Michigan and Wisconsin. The expansive nature of the modern disaster can create issues with respect to evacuation authority, interstate transport of relief supplies, licensing of assisting professionals, and responsibility of care for the thousands of survivors who seek shelter as refugees.

For these reasons—and more—it is critical to understand the source of federal, state, and local governmental authority in times of disaster, for this is the first step in identifying the proper response and recovery strategies following an event. It is next imperative that all involved understand how plans, procedures, and protocols implementing that authority are to be executed so that efforts are most effective. Finally, responsibilities must be reasonably assigned, with proper delegation to lower tier responders and coordination among all, so that all entities understand their roles, and the roles of others, to avoid duplication of efforts and to maximize efficiency.

THE SOURCE OF AUTHORITY: FEDERALISM AND THE BALANCE OF AUTHORITY IN EMERGENCY, DISASTER, AND CATASTROPHIC EVENTS

The balance of authority following a disaster event in the United States is rooted in our Constitution and the basic system of federalism incorporated within it.

The Constitution, originally composed of seven articles, delineates the national frame of government. Articles I, II, and III entrench the doctrine of separation of powers, separating our federal government into three branches: Article I provides the framework of our legislative system, establishing a bicameral Congress; Article II provides for the executive branch, consisting of the President and numerous agencies; and Article III establishes the judicial branch, consisting of the Supreme Court and other federal courts. Articles IV, V, and VI establish our concept of federalism: Article IV outlines the relationship between each state and its counterparts, as well as between the several states and the federal government; Article V identifies the process for amending the Constitution and confirms equal representation in the Senate; and Article VI establishes the Constitution as the "supreme law of the land," binding on all states. Finally, Article VII establishes the procedure subsequently used by the 13 original colonies to ratify the Constitution.

The concept of federalism (or perhaps, more accurately anti-federalism) was more fully developed in the various clauses within each Article and also with the ratification of the first ten amendments, the Bill of Rights. Perhaps the most influential to the concept, the Tenth Amendment, is written in the negative, providing that, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The states granted to the federal government enumerated powers, accepted some limitations on their own power, and agreed that exercise of the federal power would prevail over conflicting exercise of state power. Most relevant to the management of disasters and emergencies, the states granted power to the federal government to deal with emergency circumstances through the Commerce, National Defense, and Tax and Spend powers for the public welfare. However, the police power—the primary power to provide for the health and welfare of the populace—was not transferred to the federal government but was instead reserved under the Tenth Amendment to the states.

Thus, states still wield the police power as reserved to them in the Constitution. Operating under this "reserved police power," state constitutions and statutes give governors (and other state executive branch officials, such as public health officers) extraordinary police powers, upon declaration of a state of emergency, to commandeer resources, control property, order evacuations, suspend laws and administrative requirements, and take other measures as necessary to respond to a declared emergency. Indeed, logistics and geography—as well as legal authority—make state and local authorities the "first responders" to every emergency. Every natural catastrophe such as a tornado, ice storm, earthquake, wildfire, or hurricane, as well as every non-natural event such as a chlorine leak from derailed railway tank cars, a bomb at an abortion clinic, or a terrorist release of a contagious biological agent—is experienced first in a local jurisdiction and is responded to first by local and state personnel.

Nonetheless, over the last two centuries, the breadth of the application of the federal government's enumerated powers in emergency management has grown. Most limitations—financial, political, and philosophical—have given way over time to an expectation of federal response to catastrophe. Although state and local personnel are the technical "first responders" to every event, states have become accustomed to seeking—and getting—significant federal financial assistance for response and recovery efforts in times of a federally recognized (or declared) emergency or natural disaster. In fact, the recent prevailing view is that states have become overly dependent on federal resources; the result being a significant shift in federal policy to transfer primary responsibility back to states.4 Whereas the past saw a progressively growing federal response framework, current efforts seem much more focused on supporting and encouraging a more resilient recovery effort through mitigation programs and stronger floodplain management, while simultaneously shifting the responsibility for smaller scale response efforts back to state and local governments.5 A major goal of these efforts is of course to decrease the financial drain that disasters have on the federal government. But, also, the idea is that supporting a more resilient environment and transferring responsibility for smaller scale disasters to state and local governments will free up federal resources to focus efforts on planning for, and responding to, the larger disasters and catastrophic events.

During the first 160 years of the existence of the United States, Congress (using its power to tax and spend) generally passed special legislation to provide specific financial assistance to states afflicted by a disaster event.6 After World War II, the need to enlist the support of the states in preparing for foreign attack led to enactment of the Civil Defense Act in 1950,7 and federal funding and support of civil preparedness activities nurtured development of state civil defense/emergency management and response organizations. Enactment of the Disaster Relief Act of 19748 and its 1988 transformation into the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act),9 established the basic framework of federal assistance in catastrophic events.

Congress's intent for the Stafford Act was "to provide an orderly and continuing means of assistance by the Federal Government to State and local governments in carrying out their responsibilities to alleviate the suffering and damage" caused by disasters.10 The Stafford Act provides that the governor of a state may request "a declaration by the President that a major disaster exists."11 The governor's request must be "based on a finding that the disaster is of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments and that Federal assistance is necessary."12 The statute also requires that "as a prerequisite to major disaster assistance under [the Stafford Act]," the governor must "take appropriate action under State law and direct execution of the State's emergency plan" and "furnish information on the nature and amount of State and local resources which have been or will be committed to alleviating the results of the disaster."13 In multistate incidents, such as Hurricane Katrina in 2005 and Superstorm Sandy in 2012, each affected state must request a declaration, and the President issues a separate declaration for each affected state.14

Upon receipt of a governor's request, the Stafford Act permits, but does not require, the President to "declare . . . that a major disaster or emergency exists."15 After a...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT