Urban Lawyer

Representing States, Tribes, and Local Governments Before, During, and After a Presidentially-Declared Disaster

by Erin J. Greten & Ernest B. Abbott

Erin J. Greten is an Associate Chief Counsel with the Federal Emergency Management Agency. This article was written in Ms. Greten’s personal capacity and represents the individual views of the authors, and not the views of the U.S. government or its agencies, departments, or any other entity.

Ernest B. Abbott is Of Counsel to the law firm Baker, Donelson, Bearman, Caldwell & Berkowitz, and focuses his law practice exclusively on the law of federally-declared emergencies and major disasters and on the National Flood Insurance Program. From 1997 to 2001, Mr. Abbott served as General Counsel of the Federal Emergency Management Agency.

When responding to a man-made or natural event, time is a valuable, yet limited resource. In the aftermath of a disaster, it is critical for local governments to take rapid action to save lives, protect property, and protect the public health and safety. Communities do so through actions such as ordering evacuations, establishing shelters, cordoning off dangerous areas, removing debris, and taking actions necessary to ensure the provision of police, medical, fire, and utility services.

Assistance from the Federal Government may be critical to a com munity’s ability to respond and recover. Yet, unless they were subject to previous disaster losses, most communities lack prior experience with federal disaster relief programs at the time they respond to an event. As a result, communities may incur costs before federal officials arrive to explain the reimbursement process and applicable rules, and perhaps even before the state or tribe requests federal assistance.

When federal emergency response teams do arrive, they commit to providing all the assistance they can, consistent with existing law and policy, to meet emergency needs and to help communities and individuals recover. However, this assistance can only be as generous as is authorized by statute and regulation. As the response crisis fades from memory, questions will be asked about actions already taken, such as: Did the state, tribe, or local government comply with applicable laws, regulations, and policies when performing or contracting for emergency work? Further, a community’s eligibility for federal assistance could be jeopardized even before the event takes place if the community failed to follow mitigation or preparedness requirements. For example, if a community does not restrict construction or re-building in the flood plain,1 or fails to adopt and enforce building codes2 so that homes and businesses will withstand earthquakes in seismic zones or hurricane force winds in hurricane alleys, it may find itself ineligible for assistance, or that the amount of assistance available is significantly reduced.

All federal disaster assistance is subject to documentation and review requirements, and may be audited by the Department of Homeland Security’s Office of the Inspector General.3 When the rules are not followed, frequently for lack of documentation or failure to follow procurement regulations, the Federal Emergency Management Agency (FEMA) may well disallow or “deobligate” costs already incurred by the community. This means that all or a portion the federal award provided, whether spent or not, must be returned or offset against other requests for reimbursement.4

Lawyers have a critical role in protecting governments, businesses, non-profits, and individuals from the financial disaster that could follow a natural or man-made disaster if federal requirements are not understood and followed. A successful attorney will assist her or his client in identifying and maximizing all available resources; help her or his clients follow the rules; articulate the type and extent of assistance needed, and clearly document the actions taken, rationale applied, and costs incurred.

In addition, an attorney’s involvement in pre-event planning can increase efficiency after an event, improve the quality of life of survivors, and help a community to rebuild. Attorneys can help their clients develop strong, clear, and comprehensive response, recovery and mitigation plans; laws that implement or accommodate the activities envisioned in those plans; mutual aid agreements; contract provisions that address responsibilities in the event of a disaster; building codes and standards; and ensure that their clients’ property is properly insured.

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