We owe special thanks to our SULC research assistants, Walter Gabriel and Sara Tannehill.
Nature gone insane, Homes hammered by the hurricane . . . .
Everybody's world changed, After the storm. 1
On August 29, 2005, Hurricane Katrina, "the costliest and one of the five deadliest hurricanes ever to strike the United States," struck the northern Gulf Coast region, making initial landfall in Louisiana, before moving across Mississippi and into Alabama.2Hundreds of thousands of people, many of them low-to-moderate- income residents, were forced to evacuate their homes.3 Page 444
Federal law, specifically, the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the Stafford Act),4 guarantees that disaster victims will receive help through the Federal Emergency Management Agency (FEMA). The Act sets forth the type of help available and the conditions for obtaining that help, which may include financial assistance to rent housing or the direct provision of a trailer or mobile home.5 Soon after Hurricane Katrina struck, Congress approved $62.3 billion in federal assistance to be administered primarily by FEMA.6 Much of the $62 billion was earmarked for the temporary housing needs of disaster victims.7Unfortunately for the victims of Hurricane Katrina, FEMA's administration of that assistance left much to be desired.
FEMA has existed since 1979. In the twenty-six years before Katrina, it has been charged with providing temporary housing to victims of numerous major disasters-other hurricanes, earthquakes, wildfires, and civil unrest. One might have expected that by the time Katrina struck, FEMA would have learned from these experiences and developed expertise at averting housing crises.
One might also have expected FEMA to be prepared for a catastrophic hurricane on the Gulf Coast. In a Time magazine article in 2000, Joe Suhayda, a water resources expert at Louisiana State University (LSU), warned that a Category 5 hurricane "barreling out of the Gulf of Mexico" would cause Lake Pontchartrain to overflow, "essentially destroy[ing] New Orleans."8 An October 2001 article in Scientific American cited other LSU scientists in predicting the "potential drowning of New Orleans" by a hurricane's direct hit, which the author termed "inevitable."9 For five days in July 2004, officials from fifty local, state, federal, and volunteer organizations that deal with emergencies, including FEMA, participated in "Hurricane Pam," an emergency preparedness drill predicated on a Category 3 Page 445 hurricane striking southeastern Louisiana.10 The drill's purpose was to gain information to help FEMA and other agencies plan and prepare for the inevitable damage and subsequent events that would result from a real hurricane.11 One of the anticipated problems was "[c]reating housing options, including trailer or tent villages, for the thousands likely to be left homeless for months after the storm."12
Did FEMA learn anything from past disasters? Did FEMA heed the dire predictions of scientists regarding the potential damage to Louisiana from a hurricane? Did it learn anything from Hurricane Pam? Did FEMA use information gained from that exercise to take precautions that would have alleviated some of the tragic suffering still felt by residents two years after Katrina?
Thousands of residents of Louisiana, Mississippi, and Alabama whose homes were destroyed or rendered uninhabitable or inaccessible as a direct result of the storm would answer those questions with a resounding chorus of "No." Barbara R. Arnwine, Executive Director of the Lawyers' Committee for Civil Rights Under Law, testified before a House Committee in December 2005 that several months after Hurricane Katrina struck, thousands of disaster victims still had not received desperately needed assistance from FEMA and, as a result, continued to suffer harm.13 On the Page 446 one-year anniversary of the hurricane, David Scott, United States Representative from Georgia, stated, "[M]uch of the region remains devastated, government neglect and inefficiency persists, and residents continue to suffer from inadequate housing, health care, and other basic services . . . ."14 The United States
Government Accountability Office concluded in a February 2007 report that FEMA's "various catastrophic planning efforts prior to" the hurricane were incomplete and that FEMA was "overwhelmed" and "faced several challenges in providing temporary housing" to storm victims.15 To many, the failures of FEMA seemed unimaginable for a government capable, in a short period of time, of sending massive aid halfway around the world to tsunami victims or of deploying and housing hundreds of thousands of troops in Iraq.
Because the United States Treasury issued temporary housing assistance checks but FEMA mailed the instructions separately, many victims did not know the funds were to be spent only for housing. Many victims had already spent the funds for other needs when the instructions arrived.16 Thus, they found themselves potentially indebted to the federal government for using aid received from FEMA "to replace the necessities of life."17 FEMA denied assistance to many other impoverished disaster victims "based upon a mechanical or arbitrary presumption of fraud" that arguably had no factual basis.18 Arnwine further testified that "[a]fter already seeing their communities, homes, and possessions destroyed, disaster victims [we]re now forced to sleep on the floors
Arnwine, Executive Director, Lawyers' Committee for Civil Rights Under Law), available at http://www.lawyerscommittee.org/2005website/home/images /features/testimony12.6.05.pdf [hereinafter Arnwine]. Much of Arnwine's testimony was based on the complaint filed in McWaters v. FEMA, see infra notes 97-98 and accompanying text. Page 447 of relatives, on pavements, in cars, and in tents, or [we]re bounced from shelter to shelter, seemingly abandoned and forgotten by FEMA."19 Newspapers also reported victims living in barns and gutted houses, under dangerous and unhealthy conditions.20
Each day housing assistance was denied or delayed to them, Katrina victims suffered unimaginable harm. Over 200,000 people were displaced and evacuated to distant places around the country,21 many to unfamiliar regions without housing assistance or the means to reunite with their families or to return to their communities.22 FEMA's failure and in some cases refusal to provide housing assistance to Katrina victims resulted in problems that still linger, including stress, anxiety, hunger, and instability.23 Page 448
As one critic stated, FEMA's failure "compounded the hardship, confusion, and trauma of the people most in need of assistance."24Those lucky enough to receive FEMA housing vouchers had to deal with FEMA-shy landlords who refused to take the vouchers because of FEMA's "broken promises, unreasonable deadlines and mind-numbing bureaucracy."25 Ronald D. Utt, a former senior official at the Department of Housing and Urban Development, commented about FEMA's failure to provide necessary relief to the hurricane's victims as follows: "This is not incompetence. This is willful. That is the only way I can explain it."26
This article reviews the impact of disasters on victims, particularly low-income victims, whose homes are destroyed or rendered uninhabitable or inaccessible as a result of a disaster, when the federal government fails to carry out its statutorily mandated duty toward those victims. The article further analyzes the issues that may arise when lawyers attempt to seek legal redress against FEMA on behalf of those made homeless by disasters in the United States and suggests changes that could be implemented by the federal government to prevent a recurrence of such issues in the future.
When catastrophic natural disasters occur, the principal federal statute providing assistance to state and local governments, as well as to individuals, is the Stafford Act. Under the Stafford Act, FEMA is the federal agency principally charged to care for Americans who are victims of natural disasters.27
FEMA was established in 1979 by President Jimmy Carter to "provide a single point of accountability for the federal Page 449 government's disaster response."28 Carter hoped the new agency would end criticism of the government's handling of emergency management.29 The mission of FEMA as set forth in the Stafford Act is to assist the efforts of the states "in expediting the rendering of aid, assistance, and emergency services, and the reconstruction and rehabilitation of devastated areas."30 FEMA assists state and local governments "in carrying out their responsibilities to alleviate the suffering and damage" that result from major disasters and emergencies.31 FEMA, among other things, provides federal assistance programs for public and private losses and needs resulting from disasters.32
Before FEMA can render assistance in any particular place and time, a governor of a state must request that the President of the United States declare the existence of a major disaster or emergency in the area.33 The governor's request must be based on a determination that "the disaster is of such severity and magnitude that effective response is beyond the capabilities of the State," and local governments affected by the disaster and that "[f]ederal assistance is necessary."34 Based on that request, the...