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Introduction: A Short History of Homeland Security and Emergency Management Law

Introduction: A Short History of Homeland Security and Emergency Management Law. William C. Nicholson, Esq. Department of Criminal Justice North Carolina Central University. Opening Question. Why does the history of emergency management law matter?. Roots of Emergency Management.

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Introduction: A Short History of Homeland Security and Emergency Management Law

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  1. Introduction: A Short History of Homeland Security and Emergency Management Law William C. Nicholson, Esq. Department of Criminal Justice North Carolina Central University

  2. Opening Question Why does the history of emergency management law matter?

  3. Roots of Emergency Management • Ancient roots • Cave paintings • Biblical disasters • In U.S., first effort: fire hazards – still most common kind of disasters • Volunteer fire brigades • Now more full-time, professional firefighters

  4. Roots of Emergency Management • Definition: “Emergency management” is the discipline dealing with risk and risk avoidance. • Risk involves • Many issues • Many players • Integral to all lives • Need to use every day

  5. Roots of Emergency Management • Essential role of government • Perhaps most essential? • “Public health and safety” = public risks • States responsible • Federal role secondary • History of constant increase in federal role

  6. Early Legal History • 1803 Congressional Act – assistance for NH town after huge fire • 1930s Reconstruction Finance Corporation, Bureau of Public roads • Disaster loans • Public facilities only • Flood Control Act of 1934 • Army Corps of Engineers authority for flood control projects • Man controls nature

  7. World War II and Cold War • World War II • Air raid wardens • Enforce blackouts • Cold War – 1950s • Retired military • Few natural disasters • Hurricanes – dealt with one by one

  8. Emergency Management Law in the 1950s • Federal Civil Defense Administration assists states and locals • Office of Defense Mobilization located in DoD • Included “Emergency Preparedness” function • Merger in 1958 into Office of Civil and Defense Mobilization

  9. Emergency Management Law in the 1960s • More natural disasters • Earthquakes, hurricanes • 1961 – Office of Emergency Preparedness in White House • Civil Defense still in Pentagon • 1964 Alaska earthquake 9.2 • 1965 Hurricane Betsy huge damage • No flood insurance for homeowners

  10. Emergency Management Law in the 1960s • National Flood Insurance Act of 1968 • National Flood Insurance Program • Introduced Community Based Mitigation • Community agrees to forbid building in floodplains • Feds make low-cost flood insurance available

  11. Emergency Management Law in the 1970s • Flood Insurance Act of 1972 • Required flood insurance for loans backed by federal mortgages • Need for national focus on EM • Many agencies responsible • Dept. of Commerce • General Services Administration • Treasury Dept. • Nuclear Regulatory Commission • Housing and Urban Development

  12. Emergency Management Law in the 1970s • Disaster Relief Act of 1974 - HUD most authority • NFIP • Federal Disaster Assistance Administration • Still over 100 federal agencies involved in disasters • Similar scattering of authority in states • States push for single agency • Governor Carter elected President in 1976

  13. Establishment of Federal Emergency Management Agency • President Carter in 1978 sent Congress Reorganization Plan Number 3 stating intent to create FEMA • FEMA officially established in 1979 by Executive Order 12127 • EO 12148 mandated moving agencies, programs, and personnel into FEMA • Why by Executive Order not by Congressional enactment? • Downsides of Executive Order approach • Many programs, operations, policies, people needed integrating into FEMA • 23 Congressional Committees oversight

  14. Four Phases of Emergency Management • Effort to unite natural hazards preparedness and civil defense • Led to INTEGRATED EMERGENCY MANAGEMENT SYSTEM • Comprehensive emergency management • Addresses all hazards • Four phases • Mitigation • Preparedness • Response • Recovery

  15. Emergency Management Law in the 1980s • Civil defense again high priority • Cold war heated up under President Reagan • Challenges • FEMA lead for Continuity of Government • Love Canal, Times Beach pollution • Cuban refugee crisis • Corruption charges • Funding to fallout shelters not natural disasters

  16. Coping with Disaster: Emergency Management Law in the 1980s • 1988: Robert T. Stafford Disaster and Emergency Assistance Act • Codified federal agency duties in disasters • Still main source of guidance • 1988: Exxon Valdez Oil Spill • Led to Oil Pollution Act of 1990 • HAZMAT plan

  17. FEMA’s Decline 1989 -1992 • Responses criticized • Hurricane Hugo hit southeast US • Loma Prieta earthquake in CA • Slow FEMA response contrast with rapid CA state response • FEMA thinking nuclear war, CA preparing for earthquake • 1992 Hurricanes Andrew and Iniki • Result: many calls to abolish FEMA

  18. FEMA During1990s - 2001 • Many huge natural disasters • Midwest floods 1993 - 9 states • Northridge CA earthquake 1994 • Tornados, ice storms, hurricanes, floods, wildfires, drought • Major terrorist attacks • 1993: first World Trade Center attack • 1995: Murrah Building bombing in Oklahoma City

  19. Clinton Legal Response to Terrorism in 1990s • 1995: Presidential Decision Directive (PDD) 39 • FBI – crisis management • FEMA - consequence management • 1998 PDD 62: more systematic approach to fighting terrorism • 1998: PDD 63 critical infrastructure protection • 1998: PDD 67 Ensuring Constitutional Government and Continuity of Government Operations (COOP)

  20. FEMA Mitigation Steps • FEMA launches Project Impact: Building Disaster Resistant Communities mitigation program • Incorporate risk avoidance into every day community decisions • Build grassroots support for EM • Hazard Mitigation Act of 2000 • States to create Hazard Mitigation plans • Promote sustainable economic development • Project Impact eliminated in 2001

  21. September 11, 2001 Attacks Change Legal Priorities • Old reality – Survivable skyjackings • Old reality – Many domestic terrorists • First World Trade Center bombing and Murrah Building attack begin to change perspective • After September 11 attacks, immediate legal action • USA PATRIOT Act • Homeland Security Act of 2002

  22. Homeland Security and Emergency Management Law After 9-11 • Uniting and Strengthening America By Providing Appropriate Tools Required To Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001 • Department of Justice’s “wish list” • Redefines terrorism • Broader meaning for “terrorist organization” • Association triggers immigration bans • Title III: International Money Laundering Abatement and Anti-Terrorism Financing Act of 2001 • Goal – cut off terrorist financial support

  23. Homeland Security and Emergency Management Law After 9-11 • Aviation and Transportation Security (ATS) Act of 2002 • Federalizes screeners • Establishes TSA (later moved to DHS) • Homeland Security Act of 2002 (HS Act) • Creates Department of Homeland Security (DHS) • 180,000 Federal workers from 22 agencies • DHS mission to stop terrorism • Mandates National Incident Management System (NIMS)

  24. Homeland Security and Emergency Management Law After 9-11 • Public Health Security and Bioterrorism Preparedness and Response Act of 2002 • Improves ability to prevent, prepare for, and respond to bioterrorism & public health emergencies • National preparedness plan by HHS • National Emergencies Act of 2003 • Establishes procedures for Presidential declaration and termination • Declaration is prerequisite to exercising special or extraordinary powers in Act

  25. Homeland Security and Emergency Management Law After 9-11 • Defense Against Weapons of Mass Destruction Act of 2003 • Improve ability to prevent and respond to terrorist incidents with WMD • DOD to provide expert advice on WMD • Emergencies Involving Chemical or Biological Weapons 2003 • Emergencies Involving Nuclear Materials 2002

  26. Homeland Security and Emergency Management Law After 9-11 • Homeland Security Act of 2002 • Terrorism focus • Natural hazards deemphasized • Structural complement to USA PATRIOT Act

  27. Homeland Security and Emergency Management Law After 9-11 • Homeland Security Act of 2002 • Law enforcement has leadership role in DHS • HS Act of 2002 SEC. 101. EXECUTIVE DEPARTMENT; MISSION. (b) Mission. (1) The primary mission of the Department is to-- (A) prevent terrorist attacks within the United States; (B) reduce the vulnerability of the United States to terrorism; and (C) minimize the damage, and assist in the recovery, from terrorist attacks that do occur within the United States.

  28. Homeland Security and Emergency Management Law After 9-11 • Homeland Security Act of 2002 • HS Act § 507 ROLE OF FEDERAL EMERGENCY MANAGEMENT AGENCY (a) IN GENERAL.—FEMA functions include: (1) Robert T. Stafford Disaster Relief and Emergency Assistance Act (2) Carrying out its mission to reduce the loss of life and property and protect the Nation from all hazards by leading and supporting the Nation in a comprehensive, risk-based emergency management program—

  29. Homeland Security and Emergency Management Law After 9-11 • Executive Order (EO) 13224 – Sept. 23, 2001 • Defined “terrorism” • Blocked Property and Prohibited Transactions • EO 13228 – Oct. 8, 2001 • Established Office of Homeland Security • Homeland Security Council • Coordinated federal activities • EO 13231 – Oct. 16, 2001 • Critical Infrastructure Protection in the Information Age • Supersedes PDD 63

  30. Major Executive Actions Since September 11, 2001 • Homeland Security Presidential Directive (HSPD) 1: Establishing the Homeland Security Council (2001) • Coordinated federal activities • HSPD 2: Combating Terrorism Through Immigration Policies (2001) • Foreign Terrorist Tracking Task Force • Locate, detain, prosecute, or deport terrorist aliens already present

  31. Homeland Security and Emergency Management Law After 9-11 • HSPD 3: Homeland Security Advisory System (2002) – color coded warnings • HSPD 4: National Strategy to Combat Weapons of Mass Destruction (2002) • Counterproliferation to Combat WMD Use, • Strengthened Nonproliferation to Combat WMD Proliferation, and • Consequence Management to Respond to Use

  32. Homeland Security and Emergency Management Law After 9-11 • HSPD 5: Management of Domestic Incidents (2003) • Federal agencies to take specific steps for planning and incident management • Single, comprehensive approach to domestic incident management • Repeals PDD 39 • DHS to create, enforce emergency responder standards • No compliance means loss of preparedness funding • Mandates creation of National Response Plan (NRP) and National Incident Management System (NIMS)

  33. Homeland Security and Emergency Management Law After 9-11 • HSPD 6: Integration and Use of Screening Information (2003) • Terrorist Screening Center (TSC) consolidate terrorist watchlists • provide operational support • HSPD 7: Critical Infrastructure Identification, Prioritization, and Protection (2003) • Identify and prioritize United States critical infrastructure and key resources • Provide protection for them from terrorists

  34. Homeland Security and Emergency Management Law After 9-11 • HSPD 8: National Preparedness (2003) • National domestic all-hazards preparedness goal • Defines “first responder” to include emergency managers • Access to federal preparedness grants and information • Rapidly set equipment, training, and exercise standards • Annual status report of national preparedness

  35. Homeland Security and Emergency Management Law After 9-11 • HSPD 9: Defense of United States Agriculture and Food (2004) • Food safety • Identify and prioritize sector-critical infrastructure and key resources • Develop early warning • Mitigate vulnerabilities

  36. Homeland Security and Emergency Management Law After 9-11 • HSPD 10: Biodefense for 21st Century (2004) • Comprehensive framework • Federal agency roles and responsibilities • HSPD 11: Comprehensive Terrorist-Related Screening Procedures (2004) • Detect, identify, track, and interdict people, cargo, conveyances • HSPD 12: Policy for a Common Identification Standard for Federal Employees and Contractors (2004) • Government-wide standard for federal identification of employees and contractors

  37. Homeland Security and Emergency Management Law After 9-11 • National Strategy for Homeland Security (2002) • Direction to federal government • Established strategic objectives • Critical mission areas: intelligence and warning, border and transportation security, domestic counterterrorism, protecting critical infrastructure, defending against catastrophic terrorism, emergency preparedness and response

  38. HSPD 5: Management of Domestic Incidents (2003) • HSPD 5 creates penalties for non-compliant state and local emergency responders/managers • Grants, contracts, or other activities • NIMS and NRP significant compliance requirements • State and local plans reflect federal structures • Facilitates use of federal resources

  39. National Response Plan (NRP) • NRP contents • Base plan • Appendices • Emergency Support Functions (ESFs) • Support Annexes • Incident Annexes

  40. Post-Katrina Plan Review • National Plan Review - June 16, 2006 • Looked at state, local emergency plans • OK for typical “garden variety” emergencies • Not for catastrophic events

  41. National Incident Management System (NIMS) • NIMS’ Chapter III – “Preparedness cycle” that includes: • planning; • training; • equipping; • exercising; • evaluating; and • taking action to correct or mitigate • Groups must be multijurisdictional in nature

  42. Critical Infrastructure • National Strategy for the Physical Protection of Critical Infrastructure and Key Assets (2003) • Identify and assure protection of assets • Specific initiatives - collaborative environment for federal, state, and local governments and private sector • Private sector must take a key part

  43. FEMA Personnel Issues:Revolving Door • Unprecedented turnover at DHS • FEMA particularly hard hit • FEMA morale low • Could see others leaving, cashing in • Result – many old time FEMITES left • Attitude: “Today’s FEMA employee is tomorrow’s contractor”

  44. Homeland Security and Emergency Management Law After 9-11 • 2006 Appropriations Act • Secretary Chertoff’s “second stage review” • Enacted October 18, 2005 (AFTER Hurricane Katrina struck) • Broke preparedness away from FEMA into new Preparedness Directorate • FEMA’s low point?

  45. Homeland Security and Emergency Management Law After 9-11 • Warnings of dangers in abandoning traditional “all hazards” approach • Focus on terrorism • Worries of sub-par response to major natural disaster • State and local emergency managers express concern

  46. Hurricane Katrina and FEMA • Hurricane Katrina strikes • Response at all levels criticized • Calls to revive FEMA • Emphasize natural hazards • 1980s all over again?

  47. Hurricane Katrina and FEMA: Legal Responses • Congressional hearings on emergency management failures during Hurricane Katrina • Suggestions that military should be in charge of disaster response • Bills in Congress to restore FEMA • Biggest Issue: Inside DHS or independent?

  48. Hurricane Katrina and FEMA: Legal Responses • Congress sees benefits in emergency management “all hazards” approach • H.R.5441 2007 Appropriations Act resulted • Title V of the Homeland Security Act of 2002 (6 U.S.C. 311 et seq.) amended • HR 5441 Title VI `Post-Katrina Emergency Management Reform Act of 2006' • Direct result of lessons learned through Hurricane Katrina

  49. Post-Katrina Emergency Management Reform Act • 503 b 1 FEMA PRIMARY MISSION- The primary mission of the Agency is to reduce the loss of life and property and protect the Nation from all hazards, including natural disasters, acts of terrorism, and other man-made disasters, by leading and supporting the Nation in a risk-based, comprehensive emergency management system of preparedness, protection, response, recovery, and mitigation. • Note that natural disasters now listed first

  50. Post-Katrina Emergency Management Reform Act • Sec. 502 FEMA Administrator head of US Emergency Management Authority • Must have demonstrated 5 years leadership experience (was emergency management and homeland security) • Presidential Signing Statement challenges qualification requirements

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