Homeland Security Watch

News and analysis of critical issues in homeland security

November 26, 2014

Stafford at twenty-six

Filed under: Congress and HLS,Disaster,Legal Issues,Preparedness and Response — by Philip J. Palin on November 26, 2014

Quin Lucie authored this post. Mr. Lucie is an attorney with the Federal Emergency Management Agency and received his masters degree in Homeland Security Studies from the Center for Homeland Defense and Security at the Naval Postgraduate School. The opinions of the author are his own and do not necessarily reflect those of FEMA, the Department of Homeland Security or the Federal Government.

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A Quarter Century More?

Nearly 26 years after it was passed, it’s time to take another look at the Stafford Act.

November 23, 2014 was the 26th anniversary of Public Law 100-707, The Disaster Relief and Emergency Assistance Amendments of 1988. Probably doesn’t ring a bell does it? But if you’re reading this, you might know the name of the 1974 disaster relief statute it renamed, The Robert T. Stafford Act, or as most just call it, the Stafford Act.

The Stafford Act was the fifth major change to a series of Disaster Relief Acts beginning in 1950 and amended or replaced in 1966, 1969, 1970 and 1974. The Stafford Act itself has seen at least four significant amendments since 1988. However, none of these later changes was done holistically. They were all crafted in a near vacuum of each other.

In 1993 and 1994, partly in response to the abysmal response to Hurricane Andrew, Congress first amended the powers of the Civil Defense Act of 1950 and then completely removed them. Some of the preparedness authorities of the old act found their way into a new title to the Stafford Act. The Disaster Mitigation Act of 2000 added significant mitigation authorities. The Post-Katrina Emergency Management Reform Act of 2006 (PKEMRA), for the first time, explicitly authorized the activities of FEMA, though those changes appear in the Homeland Security Act, not the Stafford Act. In the Stafford Act, PKEMRA made subtle changes to its response authorities, such as allowing the President to provide assistance, after a declaration, without a specific request from a Governor. The Sandy Recovery Improvement Act of 2013 made significant reforms to the way public assistance programs are delivered to State, tribal and local governments and made tribal governments eligible to ask for disaster declarations on their own.

The result of these independent, and occasionally improvised changes has been predictable. There are now major parts of the nation’s most important disaster relief authorities that are either forgotten, misunderstood or no longer work as intended. The lack of national dialogue approaches three decades.

Forgotten.

I’m not aware of a single person in FEMA, much less the Federal Government, outside of myself, who has  taken the time to read the legislative history of the Civil Defense Act of 1950, much less understand the factors that led to its demise and reinstatement of part of it in the Stafford Act. Or know why it is the FEMA Administrator, not the President, who was given control over it. There are several parts that could be of significant use to national preparedness efforts, and at least one could provide a very significant source of authority for catastrophic relief efforts. However, these authorities remain outside of the mainstream of planning efforts and the knowledge of emergency managers.

Misunderstood.

“FEMA could develop an updated formula… to determine the capacity of jurisdictions to respond to those disasters.” So stated Mark E Gaffigan, Managing Director, Natural Resources and Environment Issues, U.S. Government Accountability Office at a hearing before the Senate Committee on Homeland Security and Governmental Affairs in February of this year. What Mr. Gaffigan failed to realize, even though he correctly labeled these formulas as recommendations, was the reasons they have not been updated in decades (Mr. Gaffigan said these fomulas have not been updated since 1986, I’m not sure that is correct – the particular regulation was last updated in January, 1990). Those reasons, which I spelled out in a post on this blog last year, were a direct result of Congress intentionally not wanting to reign in disaster declarations and to keep the criteria broad enough to allowed affected states and jurisdictions to lobby for a declaration.

No longer work as intended.

At that same February hearing, Collin O’Mara, Secretary of the Delaware Department of Natural Resources, spoke at length about how his state was not rewarded for significant pre-storm mitigation efforts it took, while New Jersey was rewarded with billions of dollars of assistance for failing to make similar efforts before Hurricane Sandy. It was clear from the testimony at this hearing that the Stafford Act, at least in parts, is no longer operating as intended.

In some cases, years of experience extracting Federal dollars under the law may have led to the exploitation of inefficiencies that can promote less than optimal mitigation strategies while discouraging more useful resilience policies. It probably now makes more sense for some state and local governments to avoid taking mitigation measures for certain risks, as they will be penalized or at least lack compensation for those measures, and instead wait for a future disaster and then use federal funding at no more than 25 cents on the dollar. In a future Stafford Act, a way needs to be found to reward the efforts of Delaware and Secretary O’Mara while incentivizing the next New Jersey to act before disaster.

These changes can be seen in real time in the States of Illinois and Pennsylvania. Illinois, who experienced several recent events where they did not receive a Federal disaster declaration, has seen legislation introduced in both its own legislature to provide state disaster assistance, and in the U.S. Senate by its two Senators to amend FEMA’s disaster declaration criteria. The proposed state law, last referred to a rules committee in April, is consistent with years of national disaster relief practice, namely that disasters should be handled locally, and then by the States before seeking Federal assistance. On its face, funds available under this law would be available immediately to local governmental bodies without waiting on the Federal government. If this reflects the consensus of the current Congress, it is this type of legislation that would presumably be encouraged and incentivized in a new Stafford Act. On the other hand, the legislation introduced by the two senators is a bit puzzling as it appears to treat FEMA’s regulations for disaster declarations as binding, when in fact they are only recommendations.

In Pennsylvania, there is a similar debate going on. Unlike in Illinois, Pennsylvania would make funds contingent on the fact areas eligible for assistance are not covered by a “Presidential disaster declaration.” This is different than the approach potentially taken by Illinois and could be seen as making Federal funding the primary source of disaster relief, rather than the State (Considering it was Pennsylvania’s own Tom Ridge who was the primary driver of the Stafford Act, it would be interesting for his perspective). Should this statute pass, the State would presumably then make grant assistance under this law unavailable to those in federally declared disaster areas. (After this post was written, a version of this statute was signed into law the last week of October).

Times change.

During the debate over the first disaster relief act in 1950, members of Congress went so far as to ensure its more cynical legislators that under the act there would be “no new agencies or bureaus” authorized under this new law. In fairness it only took around 24 years before a bureau within HUD was solely dedicated to disaster relief and 29 years before the creation of FEMA.

There are two main questions Congress must ask of itself, constituents, and State, tribal and local governments. First, does the Stafford Act currently reflect consensus national priorities for the mitigation, response, and recovery from disasters and the funding of disaster relief? Second, does the Stafford Act, taken as a whole, incentivize the most (politically feasible) efficient strategies for mitigating for, responding to and recovering from disasters? If not, what are the more (most) efficient strategies and can they be adequately prescribed under the current framework of the Stafford Act, or should the Stafford Act be completely restructured?

While not a primary consideration, Congress should also look closely at the relationship between the Stafford Act and the Homeland Security Act. For instance, the primary agency to carry out the Stafford Act, FEMA, has its primary authorities found in the Homeland Security Act. The danger is that such a discussion might quickly bog down over how changes to these two laws might change committee jurisdictions. It might also fuel the underlying friction between “emergency management” and “homeland security” something that is probably continuation of the debate between what is “civil defense” and “all hazards” from decades before.

After six generations of being taken apart, amended and replaced, the Stafford Act, when seen up close, looks more like something found in the laboratory of Dr. Frankenstein, cobbled together from years of compromise and improvised in the wake of major disasters. Maybe it’s time to take another peek under the hood and see everything that has been connected to the engine. It’s only been 26 years.

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7 Comments »

Comment by John Comiskey

November 26, 2014 @ 7:45 am

Mr. Lucie,

Defining civil defense and civic education are both worthy of a national dialogue. The recent and ongoing Ferguson-related incidents evidence this all too well.

It seems that local officials are burdened by a lagging economy and the logic that low-probability high-consequences events probably won’t happen in their terms of office and should therefore be left to future office holders. Nominally, they will promote preparedness.

Added to this all too real political reality is the realization is that if high consequence events do happen, the federal government will be there to bail them out.

Comment by William R. Cumming

November 26, 2014 @ 9:33 am

Quinn! Thanks for this terrific and thoughtful post.
The American Law Division of the Library of Congress has the best legislative histories of both Public Law 920 of the 81st Congress as amended and the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 100-707, that revised in part, repealed in part, and supplemented in part Public Law 93-288, the Disaster Relief Act of 1974. And never forget the legislative history of the 1974 Act was and is closely intertwined with the Flood Disaster Protection Act of 1974.

Comment by William R. Cumming

November 26, 2014 @ 9:45 am

After years of study IMO two major reforms need to be made with respect to the Stafford Act. And two major policy decisions need to be made. Perhaps more intertwined than I care to believe.

POLICY DECISION #1: Is the Stafford Act the basis for the civil crisis response system in the U.S?

POLICY DECISION #2: Is the Stafford Act the “SAFETY NET” for all civil catastrophic situations?

Perhaps a subset of the above is should the Stafford Act authorize a civil response and recovery systew\m and chain-of-command.

Two quick reforms by Congress are necessary IMO!

First there should be a joint permanent committee on civil crisis and consequence management. At the least the Public Works Committees of the Congress should not have primary oversight of the Stafford Act.

Second. The financial assistance portions of the Stafford Act should be converted into BLOCK GRANTS with the incentives being tailored to PREPAREDNESS, PREVENTION, and MITIGATION. The current statutory scheme provides actual disincentives to PREPAREDNESS, PREVENTION, and MITIGATION.

SCIENCE NEEDS TO BE A STAFFORD ACT DRIVER!

Comment by William R. Cumming

November 26, 2014 @ 9:53 am

There is one more critical item that needs to be accomplished. FEMA OCC, DHS OGC, and DoJ/OLC need to do a thorough study of the Stafford Act, including an examination of why so many sections of the Stafford Act have NO implementing regulations. This study would also include the implementation of the Stafford Act by other federal departments and agencies. The DRF should pay out for this study, a multi-year study IMO, but it should be headed by OLC since the DoJ has ruthlessly, in writing and opinions, suppressed FEMA’s history of attempting to limit Presidential authority and discretion in the Stafford Act and its predecessor statutes.

Comment by William R. Cumming

November 26, 2014 @ 9:56 am

One final quick thought the Congress should hold hearings on whether or not the Stafford Act should be used to fund LAW ENFORCEMENT EMERGENCIES. See 28 CFR Part 65!

My opinion is that such expenditures are NOT authorized by the Stafford Act as currently enacted.

Comment by William R. Cumming

November 26, 2014 @ 10:02 am

US Senator William Proxmire of Wisconsin when in office awarded his GOLDEN FLEECE awards. In the legislative history of Reorganization Plan No. 3 of 1978, creating FEMA, that government funding of disasters would end up as a reckless giveaway making disasters more not less likely. And that federal funding of disasters would destroy in the end the other missions and goals of the FEMA. IMO this has happened and FEMA now promotes disasters and fails in reducing disaster outlays.

Storm SANDY outlays largely rewarded States and their local governments negligence and in some cases GROSS NEGLIGENCE.

Pingback by Stafford Act at 26 years old | Recovery Diva

November 29, 2014 @ 1:03 am

[…] The Stafford Act is a key element of the enabling legislation for the Federal Emergency Management Agency.  See this account of its status and usage over the past 26 years: http://www.hlswatch.com/2014/11/26/stafford-at-twenty-six/ […]

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