ENVIRONMENTAL LAW
Homeland Security after Hurricane Katrina

By Joe Whitley, Kipp Coddington, and George Koenig

Hurricane Katrina destroyed any false sense of security that we may have held about our level of preparedness to deal with a disaster on this order of magnitude. During the first few hours and days after landfall, we saw breakdowns in communication within and among every level of government. Critically, the Department of Homeland Security (DHS) must immediately address areas of potential ambiguity or perceived confusion—who declares an emergency, who leads the response and recovery efforts, how are resources managed—and we must create an expedited, transparent, and effective contracting and contract oversight process.

Federalism in disaster response. The Stafford Act, which governs the means by which federal assistance is provided to state and local officials in the aftermath of an emergency, memorializes the classic federalist aspect of FEMA’s role by making clear that the president’s declaration of a major disaster or emergency may only be triggered by a formal request from the governor of an affected state. Once made, the act requires the appointment of a federal coordinating officer (FCO). Thereafter, the FCO is responsible for managing most, if not all, aspects of the federal response within the state to which he or she is assigned.

The National Response Plan (NRP) is the principal guidance document governing federal procedures for responding to and managing a domestic incident. It is primarily relevant for those activities that are directly related to an evolving incident or potential incident, as opposed to steady-state preparedness or readiness activities. The NRP distinguishes between incidents that require DHS coordination—known as “incidents of national significance”—and other events that occur each year and are “handled by responsible jurisdictions or agencies through other established authorities and existing plans.”

The NRP assigns to the secretary of DHS the following authorities: the designation of an incident of national significance (INS); the authority to convene the Interagency Incident Management Group (IIMG); the designation of a principal federal official (PFO); and the invocation of the NRP’s catastrophic incident annex (CIA). Once an event is designated an INS, DHS is to convene the IIMG.

Certain aspects of the federal government response procedures set forth in the NRP differ from those in the Stafford Act in several significant respects. For example, in a majority of cases, a state request for assistance is a prerequisite for a presidential declaration under the Stafford Act, but not for an INS under the NRP. The president is responsible for invoking the Stafford Act, while the secretary of DHS alone declares an INS.

The specific response procedures under the Stafford Act and NRP also differ in key respects. When disaster strikes, the federal response could be different depending on which of the following have been invoked: (1) the Stafford Act; (2) the INS provisions of the NRP; and/or (3) the provisions of the NRP that apply when an event is not an INS.

The federal government’s response to Hurricane Katrina revealed ambiguity about which authorities were to be invoked (i.e., the Stafford Act or various provisions of the NRP) when the storm came ashore. President Bush invoked the Stafford Act 36 hours before the hurricane, and about 24 hours after the storm made landfall, DHS Secretary Michael Chertoff issued a memo declaring the storm the first-ever “incident of national significance” under the NRP. This may have created uncertainty because under the Scope and Applicability section of the NRP, the secretary must declare an INS, but under the Planning Assumptions, the NRP states that “all Presidentially declared disasters and emergencies under the Stafford Act are considered Incidents of National Significance.” This apparent conflict could spill over to the fundamental issue of which federal official is in charge in the critical hours after a major disaster occurs.

Fortunately, these problems are readily fixable. Two obvious solutions to this ambiguity are: (1) during an INS, in order to clarify authority, the secretary of DHS could “dual hat” the PFO as the FCO; or (2) Congress could make the PFO’s authority express through statutory mandate, similar to the FCO. Either way, the administration—and Congress, if necessary—must provide greater clarity regarding the relationship between the Stafford Act and the NRP.

Finally, another important issue to be resolved is the authority of the secretary of DHS and the PFO over other departments and agencies responding to a disaster. The secretary of DHS or the PFO in the field runs the risk of delayed response and the loss of credibility with state and local officials if he or she cannot make commitments on behalf of the entire federal government, especially during the immediate emergency response phase. During those critical hours and days immediately after a disaster, the secretary of DHS or the PFO cannot defer making decisions until he or she hears back from another secretary or federal agency. Substantial preapproved authority should be granted to the secretary of DHS or the PFO so that the operational needs of disaster response can be met without hesitation.

Looking ahead. Planning is the “front end” of homeland security—including functions such as intelligence gathering and analysis, threat assessment, and the setting of national security standards—as opposed to the “back end” functions of emergency response and disaster recovery. For natural disasters, planning means ensuring that state and local governments are prepared for the event before it occurs. For terrorist incidents, planning means the same plus taking all lawful means to prevent attacks from occurring. DHS, as the lead federal disaster planner for the nation, will need to renew its efforts to perform these critical planning functions, particularly for catastrophic events such as Hurricane Katrina.

Until recently, DHS arguably was not structured to effectively fulfill its planning mandate. For example, DHS’s Office of State and Local Government Coordination and Preparedness reported directly to the secretary instead of through the undersecretary for emergency preparedness and response. Other preparedness functions were dispersed throughout the DHS organizational chart in a noncentralized manner. As a result, DHS was unable to speak and act with one voice on these important issues.

Unless there is a specific direction from the president, requests for military assistance must originate from a lead federal agency. Typically, this falls to FEMA in natural disasters. In the case of Katrina, it took more than a week for some requests to make it through this system. The system clearly needs to be streamlined to allow for faster response.

Some have suggested that the U.S. military’s role be expanded to include domestic law enforcement functions in the immediate aftermath of a catastrophic event. The difficulty with this approach is that the Posse Comitatus Act generally prohibits U.S. forces from engaging in domestic law enforcement activities. Modifying the Posse Comitatus Act to make the Pentagon a federal police chief would mark a decided shift in domestic law enforcement power from the states to the federal government. A better solution is to rely on the National Guard, to which the act does not apply unless the Guard members are activated as federal troops.

FOR MORE INFORMATION ABOUT THE SECTION OF ENVIRONMENT, ENERGY, AND RESOURCES

This article is an abridged and edited version of one that originally appeared on page 3 of Natural Resources & Environment, Spring 2006 (20:4).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

Website: www.abanet.org/environ.

Periodicals: Natural Resources & Environment, quarterly magazine; Trends, bimonthly newsletter; The Year in Review, annual summary of legal developments; committee newsletters.

Books and Other Recent Publications: Toxic Tort Litigation; Amending CERCLA; The Federal Information Manual; Wetlands Law and Policy; Environmental Aspects of Real Estate and Commercial Transactions, 3d ed.; Clean Air Act Handbook, 2d ed.; RCRA Practice Manual, 2d ed.; and the Basic Practice Series with titles including FERC, RCRA, CERCLA, EPCRA, Clean Air Act, Clean Water Act, ESA, FIFRA, and TSCA.

Joe Whitley, Kipp Coddington, and George Koenig are members of Alston & Bird LLP’s Global Security & Enforcement Practice Team in the firm’s Washington, D.C., office. They can be reached at , , and .

Copyright 2007

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