Law and Lawyers in the Incident Command System

• Publication year: 2013

Washington Law ReviewVolume 36, No.4, SUMMER 2013

Law and Lawyers in the Incident Command System

Clifford J. Villa(fn*)

I. INTRODUCTION

"[I]f we can't do ICS, we cannot manage disasters."(fn1)

On July 25, 2010, while much of the nation's attention remained riveted on the Deepwater Horizon disaster in the Gulf of Mexico, another environmental disaster began one thousand miles north in Marshall, Michigan. At 5:58 p.m. local time, an oil pipeline owned and operated by Enbridge Inc. ruptured in a wetland near a tributary of the Kalamazoo River.(fn2) For seventeen hours, the rupture went unnoticed as oil poured from the pipeline into the river system.(fn3) Carried by heavy rains, the oil spread over thirty river miles,(fn4) overtopping dams, injuring wildlife, prompting local evacuations, and posing an ultimate threat to Lake Michigan downstream.(fn5)

The size and gravity of the Enbridge oil spill required a massive and immediate response, led by the U.S. Environmental Protection Agency (EPA). On July 27, 2010, within twenty-four hours of discovering the spill, the EPA regional office issued an order under the federal Clean Water Act(fn6) requiring Enbridge to provide for immediate actions to stop the oil discharge, contain the oil slick, and begin environmental cleanup.(fn7) By the next day, July 28, 2010, hundreds of response personnel along with heavy equipment deployed to the scene, and Enbridge reported that it had stopped the oil from flowing into the river. By that time, however, nearly 850,000 gallons of oil had discharged into the river, requiring containment and cleanup operations that would continue for weeks, months, and ultimately years.(fn8) Early operations included the use of "[m]ore than 200 boats," "85 miles of absorbent boom," and over 2,000 response personnel.(fn9) Among this horde descending upon Marshall, Michigan, were, of course, the lawyers.

Like the legion of litigators drawn to the British Petroleum (BP) oil spill in the Gulf of Mexico in the same year, agency attorneys and corporate counsel leaped into action to address liability concerns flowing from the Enbridge oil spill in Michigan. The government would seek to recover its own response costs,(fn10) and injured parties would seek compensation for a variety of losses.(fn11) There might be civil fines,(fn12) criminal penalties,(fn13) or natural resource damages.(fn14) Insurance claims would be filed, defenses would be invoked, and efforts would be made to share burdens all around.

These may be familiar roles for lawyers, drawing from established practice areas such as environmental law, torts, and insurance.(fn15) However, in the emerging field of disaster law,(fn16) lawyers from almost any discipline may find roles in what the literature of disaster law conceptualizes as a "disaster cycle," including preparedness, response, recovery, and mitigation.(fn17) Within this cycle, conventional thinking confines lawyers to the recovery phase, in particular, pursuing claims or litigation seeking compensation from government agencies, insurance companies, or responsible parties. This association certainly has reason, as attested by the epic legal responses to 9/11,(fn18) Hurricane Katrina,(fn19) and the Deepwater Horizon. (fn20) Less obvious, however, from the Enbridge response and other recent cases, were the contributions that lawyers and legal scholars could make at other points within the disaster cycle, including the response phase.(fn21) For lawyers, these roles include legal advisors and agency liaisons, operating within a management framework known as the Incident Command System (ICS).

ICS is a "management system designed to enable effective, efficient incident management by integrating a combination of facilities, equipment, personnel, procedures, and communications operating within a common organizational structure."(fn22) Through the use of standardized positions (e.g., incident commander), common terminology (e.g., incident command post), and consistent management philosophies (e.g., unity of command), ICS seeks to facilitate the rapid integration of personnel from different agencies and entities into one organization to meet a common objective.(fn23)

Developed in California in the early 1970s,(fn24) the Incident Command System is used today throughout the United States by federal, state, tribal, and local governments, as well as nongovernmental organizations and the private sector, to plan for and respond to incidents of all kinds that require coordination among agencies and organizations.(fn25) ICS applies to "all hazards," including natural disasters (e.g., tornadoes, earthquakes, hurricanes, floods) and manmade incidents (e.g., terrorist strikes, oil spills).(fn26) Fire departments use ICS to put out fires,(fn27) local law enforcement agencies use ICS to respond to traffic accidents and civil disorder, (fn28) and public health officials use ICS to respond to public health emergencies.(fn29) Court staff, school principals, and campus security use ICS to ensure the security of courthouses,(fn30) school grounds,(fn31) and college campuses.(fn32) ICS can be used for planning events of all size, from local sporting matches(fn33) to Olympic Games.(fn34) It appears now that ICS is beginning to be adopted internationally.(fn35)

While ICS has existed for some forty years, the use of ICS grew significantly in the past decade because the United States learned hard lessons from infamous failures of incident management after 9/11 and Hurricane Katrina.(fn36) Use of ICS may also be growing simply because we have more frequent and catastrophic incidents, brought upon us by chronic problems including aging infrastructure,(fn37) risky business en-deavors,(fn38) and climate change.(fn39) Indeed, in the wake of more recent climate-related events including Hurricane Irene in 2011 and Hurricane Sandy in 2012,(fn40) policymakers and legal scholars(fn41) may look increasingly to ICS as one tool for climate change adaptation.(fn42) As such, ICS theory and practice must be understood by legal scholars and practitioners who seek to contribute to the growing fields of climate change adaptation and disaster response.

Filling a gap in the legal literature, Part II will provide lawyers and legal scholars with an introduction to the Incident Command System, outlining the origin, doctrines, and organizational framework of ICS, along with major early critiques. Part III illustrates the law and application of ICS through transformative events including 9/11, Hurricane Katrina, and the Deepwater Horizon. Part IV examines the potential roles for lawyers in ICS, including the emerging ICS position of legal officer. Part V concludes with suggestions for future legal research and practice in the Incident Command System.

II. INTRODUCTION TO THE INCIDENT COMMAND SYSTEM

Although some forty years old, the Incident Command System seems to have largely escaped the critical attention of the legal community.(fn43) This may be changing, however, because legal scholars(fn44) and practi-tioners(fn45) are coming to recognize the new reality brought to us by aging infrastructure, risky endeavors, and climate change, a reality summed up succinctly by Professor Farber: "Disasters, both natural and human-induced, are an increasingly common feature of twenty-first century life."(fn46) This reality gives rise to a "dire need for a systematic, thoughtful approach to managing the chaos of disasters."(fn47) One such "systematic, thoughtful approach" may be the Incident Command System. Understanding ICS today may require some knowledge of how it developed. This Part thus begins by discussing the origin of ICS. For the convenience of readers new to the Incident Command System, this Part then outlines the basic structure and tenets of ICS, along with some critical evaluations of ICS theory.

A. Origins

The Incident Command System arose in response to a series of devastating wildland fires in southern California in the fall of 1970. Within thirteen days, the fires consumed sixteen lives, 700 structures, and over one-half million acres, with costs and losses totaling $18 million per day.(fn48) While the various fire agencies did their best to contain the conflagrations, differences in personnel, equipment, terminology, and organizational structures hampered the effectiveness of their response efforts.(fn49) In 1972, Con gress tried to help address those problems by providing funds to the U.S. Forest Service for research on methods to "strengthen fire command and control systems."(fn50) That research, drawing upon Forest Service collaborations with local fire agencies in southern California, resulted in a system that came to be known as FIRESCOPE (Firefighting Resources of California Organized for Potential Emergen- cies).(fn51)

In 1973, a FIRESCOPE technical team assembled to guide development of a command structure that would facilitate multi-agency coordination in responding to emergency incidents.(fn52) In developing this command structure, technical team members drew organizational ideas from contemporary research on systems theory(fn53) and operational structures from existing models for fire response.(fn54) Reflecting growing interest in a command structure that could apply to all types of emergencies, the focus expanded beyond firefighting, and the "Incident Command System" was born.(fn55)

By the mid-1970s, the FIRESCOPE agencies had agreed upon the...