EMERGENCY MANAGEMENT AND LAW

William Charles Nicholson, Esq.

Department of Criminal Justice

North Carolina Central University[^1]

<wnicholson@nccu.edu>

**Abstract**

The following chapter relates the history of law and emergency
management, discusses vulnerability and steps to be taken for its
reduction, defines various concepts from a legal perspective, and
examines gaps in knowledge between the two fields. The chapter also
notes how law may improve emergency management and identifies
considerations that are paramount to the future. The major argument to
be presented is that law and emergency management are inherently
intertwined and that legal norms in the disaster field are changing and
having a significant impact on the profession.

**Introduction**

In many ways, emergency management could not exist without the law. In
the United States, legal enactments provide the authorities and funding
for emergency management. Definitions of critical emergency management
terms have been established in legal enactments. Although their
interaction may be difficult at times, lawyers and emergency managers
need one another. A major obstacle is the mutual ignorance that all too
often characterizes their relationship. When attorneys, emergency
managers, and leaders of units of government take the time to build a
relationship that encompasses all phases of emergency management, the
result can be shelter from liability as well as greater life safety and
improved property protection.

**History of Law and Emergency Management**

The history of disasters in the United States is intertwined with the
law (FEMA, 2005a). On the federal level, as early as 1803, Congress
enacted legislation to provide relief from a severe fire in a New
Hampshire town. The Congressional Act of 1803 is generally thought of as
the first piece of disaster legislation. During the next century,
specific legal enactments authorized funding for the response to
disaster events one incident at a time. The 1930's brought about an
organized federal approach to disaster law. The Reconstruction Finance
Corporation was authorized to generate disaster loans for the repair and
reconstruction of some public facilities after an earthquake. This
authority was extended later to other varieties of disaster. The Bureau
of Public Roads, under a 1934 law, was empowered to provide funding for
highways and bridges damaged by natural disasters. Another important
piece of legislation, the Flood Control Act, expanded the authority of
the U.S. Army Corps of Engineers to put into effect flood control
projects. This approach to disaster assistance improved on the prior
"one at a time" practice of creating legal authority. Yet problems
remained. The ever increasing size of the national government meant that
sometimes federal agencies with different pieces of disaster authority
found themselves working at cross purposes. As a result, Congress
enacted legislation requiring better greater cooperation between federal
agencies and authorizing the President to coordinate these activities.

The subsequent history of disasters reveals that they steadily grew in
both number and magnitude. The federal government was faced with
enormous disasters in the 1960's and early 1970's. The Federal Disaster
Assistance Administration, which was located in the Department of
Housing and Urban Development, coordinated these efforts. Hurricanes
Carla (1962), Betsy (1965), Camille (1969), and Agnes (1972), as well as
large earthquakes in Alaska (1964) and San Fernando in California (1971)
put natural disasters in the forefront of national attention, and
resulted in legislation. The 1968 National Flood Insurance Act gave
homeowners new assistance, while the 1974 Disaster Relief Act
regularized the procedure for issuance of Presidential disaster
declarations.

Despite this legal progress, there was still not a unified framework for
emergency and disaster practices. By the 1970's, disasters, hazards and
emergencies were the business of over 100 federal agencies. On the state
and local level, similar structures were in place. The result was a
confusing welter of groups and efforts that often competed with or
duplicated one another. At the request of the National Governor\'s
Association, President Jimmy Carter moved to consolidate federal
emergency functions.

In 1979, President Carter\'s issued an executive order unifying federal
disaster activities under the newly created Federal Emergency Management
Agency (FEMA). FEMA incorporated many bodies, including the Federal
Insurance Administration, the National Fire Prevention and Control
Administration, the National Weather Service Community Preparedness
Program, the Federal Preparedness Agency of the General Services
Administration and the Federal Disaster Assistance Administration from
HUD. Civil defense moved to FEMA from the Defense Civil Preparedness
Agency in the Department of Defense.

In the aftermath of the first attack on the World Trade Center (1993)
and the Oklahoma City bombing (1995), FEMA's \"all-hazards\" approach to
disaster management was overshadowed by a concentration on homeland
security matters. The Homeland Security Act of 2002 (HS Act) united 22
federal agencies, programs and offices, including FEMA, to create the
Department of Homeland Security (DHS). Creating DHS was another legal
step in unifying disaster preparedness and response. DHS' mission
focuses on terrorism, including prevention, vulnerability reduction,
minimizing damage, and assisting in recovery from terrorism attacks
(107^th^ Congress, 2002, § 1(a-c)). Also included in the Department's
responsibilities is carrying out all functions of entities transferred
to the Department, including acting as a focal point regarding natural
and manmade crises and emergency planning (107^th^ Congress, 2002, §
1(d).

Some experienced emergency management observers believe that the focus
at DHS is too terrorism-oriented (Nicholson, 2003a), with troubling
impact on the all-hazards preparedness mission that FEMA has
traditionally espoused (Waugh, 2002). This is an issue that has two
sides, but whatever perspective one endorses, to a great extent the
argument revolves around the nature of legal enactments and their
interaction with policy. From the view of statutory construction,
however, the fact that the Department's terrorism responsibilities are
listed as the first three parts of its mission while other hazards are
lumped together in fourth place means that Congress intended DHS'
terrorism responsibilities to be more important than those dealing with
other hazards.

# 

# Defining and Reducing Vulnerability

The National Response Plan (NRP) (National Response Plan, 2005a), and
the National Incident Management System (NIMS) (National Incident
Management System, 2005a) do not define "vulnerability." In the FEMA
publication *Building Design for Homeland Security*, "vulnerability" is
defined as "any weakness that can be exploited by an aggressor or, in a
non-terrorist threat environment, make an asset susceptible to hazard
damage" (FEMA, 2005b). The publication discusses vulnerability
assessment as well as what steps to take once vulnerabilities have been
identified in order to mitigate against the identified threat.

The persuasiveness of authority for the term "vulnerability" is somewhat
less than if it were defined directly in the NRP or NIMS. Its
promulgation by FEMA and general use in the profession, however,
indicate that an American Court under the commonly accepted business
practice doctrine (discussed at greater length below) would find them
influential.

Recently, a pair of Australians made an interesting suggestion for an
increased role for legal enactments in vulnerability reduction (Handmer
and Monson, 2004). Their approach features a definition of vulnerability
as "a multi-faceted concept incorporating issues of livelihood, housing,
security, and gender, among many others" (Handmer and Monson, 2004). The
piece suggests that a link between vulnerability and law exists when
laws set out rights to adequate housing and livelihood, for example. In
addition to the familiar constraints of public and private law, social
norms, custom, and international law are posited as having the potential
to regulate vulnerability (Handmer and Monson, 2004). The article
focuses on human rights as found in national public law, since such laws
have been enforceable by the citizenry against their government.
Enforcing other types of law is a much less certain endeavor.

Vulnerability is a "function of susceptibility to loss and the capacity
to recover" (Handmer and Monson, 2004). Due to their more positive
connotations, some prefer the terms resilience or capacity to
vulnerability. The most vulnerable people are those whose basic human
needs, like adequate food, shelter, health care, and education, are
unmet. These needs are defined by the piece as "fundamental human
rights."^1^ The rights based approach works from the bottom --
originating with the affected groups --as opposed to from the top --
through government, Courts, and experts. The approach identifies the
sources of vulnerability (failure to meet certain rights) and contains a
way to reduce them (through legal enforcement of rights).

The article posits that international law may provide a method for
expansion of enforceable human rights, through more inclusive
interpretation. For example, it suggests that the right to life, liberty
and security of every person under the *Universal Declaration of Human
Rights* might expand to include protecting the "security of the person"
from other harm, like natural disasters. Such an approach overemphasizes
the force of international law, whose power extends only to those
matters by which individual nations agree to be bound. Nations
unilaterally may change their adherence to such agreements, other than
in matters of torture and genocide. The article acknowledges an
"implementation gap" on human rights, even in wealthy nations as well as
the virtual impossibility of enforcing naked (that is, without
incorporation into domestic law) international law. While some may
espouse universal human rights, their practice is far from uniform
around the world.

Three South African cases are interesting illustrations of the authors'
premises. The first establishes a constitutional obligation to provide
disaster relief, but states that a hearing is not required for all who
object to the way relief is given (Handmer and Monson, 2004). The
exceptional circumstances in a disaster allow the government to forego
more onerous procedures than would normally apply to decision making.
While the United States has never held disaster relief to be a
constitutionally protected right (and the possibility of that ever
happening in the US is highly unlikely, to say the least), the ability
of the government to avoid procedural inconveniences is well established
here.^2^ The second decision revolves around access to housing and
health care. Like many other nations with constitutions established or
heavily revised in the second half of the twentieth century,^3^ South
Africa's constitution lists a range of rights to be provided within its
available resources, including housing and health care. The residents in
this case were squatting on private land, from which they were cruelly
ejected, after which they were relocated into intolerable conditions.
They appealed to the Constitutional Court. That tribunal held that,
despite the challenges in enforcing them, "these are rights, and the
Constitution obliges the State to give effect to them" (Public Law, No
Publication Year).

The third case discusses the right to treatment for HIV patients. Some
scholars view AIDS as a type of disaster (Varley, 1994). Clearly, the
illness's effect on public health budgets has been disastrous. This case
provided that South Africa had the constitutional obligation to provide
HIV treatment to pregnant women to help prevent transmitting HIV to
their unborn children. The South African Constitution recognizes a right
to access to public health care services and requires the state to take
reasonable steps, within its available resources, to achieve the
progressive realization of this right (Public Law, No Publication Year).
The Court found that the government was not going far enough in making
appropriate medication available.

The South African cases illustrate how far a country may go in
guaranteeing and enforcing human rights that go well beyond those
afforded in the United States. Other nations with similar constitutions
might pursue the same approach. In Europe, human rights established by
the European Union cannot be enforced in the European Court of Human
Rights, which enforces the European Convention on Human Rights. That
convention does not recognize, for example, a right to adequate housing
or health care. The best approach in Europe, as well as in Australia, is
posited to be through legislation rather than Constitutional change
(Public Law, No Publication Year). This is because, as in the United
States, it is very difficult to amend the Constitution.

Parenthetically, it must be observed that the desire to resist the
faddish causes of the moment and preserve existing property and other
legal relationships is an important reason that Constitutions are
difficult to amend.

Also, as a practical matter, establishing the redistribution of wealth
in the manner envisioned by the expansion of fundamental human rights to
include disaster relief, housing, and medical care is most likely to
result in national bankruptcy for those countries that decide to put it
into action. The limit placed on such services by the "progressive
realization" language cited by the South African Court decisions may
mean that the process of bankruptcy will be prolonged rather than
immediate, but that does not make it less probable.

**The Legal Perspective**

As might be expected, hazards, disasters, and emergency management have
definitions established by law. Definitions are found in various
locations, most importantly including glossaries in the National
Response Plan (NRP) (National Response Plan, 2005) and the National
Incident Management System (NIMS) (National Incident Management System,
2005). States also define some of these terms. Federal and state law
also determines responsibilities for preparedness.

When finalized, the NRP and NIMS will be the end product of a process
that began with the passage of the HS Act of 2002. On February 28, 2003
President Bush issued Homeland Security Presidential Directive 5 (HSPD
5) (The White House, 2003). HSPD 5 directs all Federal agencies to take
specific steps for planning and incident management. HSPD 5's major goal
is to establish a single, comprehensive approach to domestic incident
management. The effect of this unified approach will be efficient and
effective operation of all levels of government as regards disasters.
The Directive specifies the lead agencies for terrorism events and other
major disasters. HSPD 5 directs all Federal agencies to work together
with DHS to institute the NRP and NIMS. NIMS is the operational portion
of the NRP (Homeland Security Presidential Directive 5, 2003). In this
manner, legal authority for creating the NRP and NIMS flows from the HS
Act of 2002 through HSPD 5 to DHS (Nicholson, 2003b). Failure to comply
with the mandates of the NRP and NIMS subjects emergency response and
emergency management groups to sanctions, in the form of losing federal
grant funds (Homeland Security Presidential Directive 5, 2003).

Given that the NRP and NIMS establish enforceable standards, their
definitions have the effect of law for those entities that do not wish
to lose their federal funding. For the few entities that do not elect to
preserve their federal funding, the NRP and NIMS definitions will also
have legal effect as industry standards. The "commonly accepted business
practice" doctrine operates to establish elevated standards of care when
a large number of similarly situated concerns take supplemental actions.
Here, adoption of NRP and NIMS by an overwhelming majority of emergency
management groups would be strong evidence to a Court that it should
hold all emergency management organizations to these norms.

The NRP and NIMS define "hazard" as something that is potentially
dangerous or harmful, often the root cause of an unwanted outcome
(National Response Plan, 2005; National Incident Management System,
2005). To define "disaster," the NRP and NIMS refer to the Stafford
Act's definition of a "major disaster" as:

> Any natural catastrophe (including any hurricane, tornado, storm, high
> water, wind-driven water, tidal wave, tsunami, earthquake, volcanic
> eruption, landslide, mudslide, snowstorm, or drought) or, regardless
> of cause, any fire, flood, or explosion, in any part of the United
> States, which in the determination of the President causes damage of
> sufficient severity and magnitude to warrant major disaster assistance
> under this act to supplement the efforts and available resources of
> States, local governments, and disaster relief organizations in
> alleviating the damage, loss, hardship, or suffering caused thereby
> (National Response Plan, 2005; National Incident Management System,
> 2005).

States typically have their own definitions of disaster.^4^

The NRP and NIMS do not define "emergency management." Two on line
courses offer definitional assistance that is consistent. The FEMA on
line course Introduction to Emergency Management does not offer a simple
designation. Rather, it discusses the nature of comprehensive emergency
management, building from the simple image of a homeowner responding to
a broken water pipe and a flooded basement. The course sums up the
modern emergency management's focus as follows:

> Today the emphasis is on the protection of the civilian population and
> property from the destructive forces of natural and man-made disasters
> through a comprehensive program of mitigation, preparedness, response,
> and recovery (FEMA, 2005c).

FEMA's on line Principles of Emergency Management course defines the
term rather straightforwardly as "Organized *analysis, planning,
decision-making, and assignment of available resources* to mitigate,
prepare for, respond to, and recover from the effects of all hazards"
(FEMA, 2005d). States also have their definitions for emergency
management, which correspond to the federal approach described above.^5^

The persuasiveness of authority for the term "emergency management" is
somewhat less than if it were defined directly in the NRP or NIMS. Its
promulgation by FEMA and general use in the profession, however,
indicate that a Court under the above discussed commonly accepted
business practice doctrine would find it influential.

The HS Act of 2002 is somewhat contradictory in setting out
responsibilities for preparedness. The role of FEMA is defined to
include its Stafford Act functions as well as reducing the loss of life
and property and protecting the nation from "all hazards" by leading and
supporting the nation in a comprehensive, risk-based emergency
management program.^6^ The law tasks the Office of Domestic Preparedness
(ODP) with terrorism preparedness, in contrast to FEMA, which is
specifically entrusted with preparing for and mitigating the effects of
nonterrorist-related disasters in the United States.^7^ The statute's
reader wonders whether the "all hazards" language is mere window
dressing, given the division of roles in the description of ODP's
tasking.

The end result must be confusion to emergency management, similar to
that engendered by Congress' decision to break off planning for release
of extremely hazardous substances (EHS) from "all hazards" emergency
management in 1986. The federal Emergency Planning and Right to Know Act
(EPCRA) requires state and local units of government to split off an
important part of emergency management to another entity. EPCRA is
contained in the Superfund Amendment and Reauthorization Act of 1986
(SARA Title III) (USC, 2005, §§ 11001-11050). EPCRA mandates that a
State Emergency Response Agency (SERC) must ensure planning for EHS
releases (USC, 2005, § 1001(a)). The SERC creates emergency planning
districts and superintends Local Emergency Planning Committees (LEPCs),
(USC, 2005, § 1001(b) (c)) which do the planning for EHS releases (USC,
2005, § 1001(a)).

Emergency management has been able to incorporate LEPC plans as annexes
to emergency operations plans. LEPCs and emergency management generally
work well together. It remains to be seen whether the same approach will
be applied as successfully to terrorism planning at all levels of
government.

# 

# The Interaction Between Law and Emergency Management

The relationship between law and emergency management may be
characterized as one mutual need. Mitigation in particular is an area
where the two disciplines have the potential to interact very well.
Regrettably, in spite of the fact that the law creates emergency
management, in general the understanding of emergency managers and
lawyers may be described as mutual ignorance. Some are not even aware
that their activities are governed by both federal and state law (Pine,
1991).

Many business and government leaders are uninformed regarding the laws
that control their behavior. Sometimes, emergency managers may pay no
attention to the law. They may vociferously declare themselves to be
"too busy saving lives and protecting property to bother with all that
legal mumbo jumbo." Such an attitude is peculiar, given emergency
management's "all hazards" character. Analysis of the instructive
resources accessible to most emergency managers, however, renders their
stance more comprehensible. Despite the fact that emergency management
is a legal product on the federal, state and local levels, FEMA's
educational materials have historically been deficient regarding
coverage of legal issues (Nicholson, 2003c). As a result, matters of
liability constitute the greatest unanticipated and unexamined
vulnerability that emergency management confronts.

One characteristic shared by top attorneys is their knowledge and
understanding of their customer's industry in general, as well as the
specifics that set the client's business apart from the rest. Sadly,
emergency management lawyers possess minimal assets outside of statutes
and interpretations thereof as source material to utilize when
counseling their clients on even simple legal matters (Nicholson,
2003d). The wise attorney will recognize his or her ignorance and pursue
knowledge of the client's organization. It will be necessary to hunt up
resources that go beyond the Continuing Legal Education that lawyers
usually see as their main font of information. One way for the emergency
management lawyer to go farther is to enroll in the Emergency Management
Professional Development Series offered by the Federal Emergency
Management Institute (FEMA, 2005e).

**How Legal Advice Can Improve Emergency Management**

An integrated emergency management system is composed of a conceptual
framework that increases emergency management capability through
networking. To achieve increased capability, there must be prior
networking, coordination, linkages, and partnerships. There must also be
creative thinking about resource shortfalls. All hazards threatening a
community must be identified so that needs may be compared with
resources (FEMA, 2005e). This process requires emergency managers to be
pro-active risk managers as opposed to reactive risk ignorers.

Given the all-encompassing nature of law's relationship with emergency
management as discussed above, potential liability is a hazard that
confronts all emergency management organizations and the units of
government that they serve. Potential claims in the aftermath of
disasters include wrongful death, negligent planning or actions during
the disaster, civil rights violations resulting from improper use of
authority, exceeding the scope of proper practice for emergency
management, failure to properly distribute aid, monetary damages
resulting from loss of business during an evacuation, and many more.

The advance networking required to address the legal hazard entails
joining together with legal counsel to avert prospective liability.
Properly trained legal counsel may offer beneficial input prior to the
emergent event that gives rise to possible liability. Networking with
legal counsel in such a manner defines "litigation mitigation"
(Nicholson, 2003e). Litigation mitigation has three complimentary
objectives:

1.  reduced exposure to legal claims;

2.  improved life safety; and

3.  enhanced property protection.

Typically, legal counsel looks at the first element as his or her main
concern. To an emergency manager, all three components are of critical
significance. Actually, life safety and property preservation are
natural byproducts of legal protection.

If litigation mitigation makes so much sense, one may inquire as to why
it is not more prevalent. Several impediments prevent litigation
mitigation. A few are intentionally inflicted, while others are the
product of the natural evolution of groups with different traditions.

One important obstacle to pro-active connections with attorneys results
from groups' usual approach to the use of legal counsel. By tradition,
governmental employees look on the attorney like a "legal firefighter."
The lawyer gets the call following the legal conflagration's eruption.
All too frequently, the client only contacts the attorney after the
arrival of legal documents indicating commencement of a lawsuit. The
other side of fire fighting is fire prevention, just as the other side
of emergency response is mitigation. For emergency management, the
attorney could prove to be the equivalent of a fire inspector. Like the
inspector, the attorney often may recognize the tinder for a legal
inferno and highlight economical approaches that might reduce the
hazard.

To the person in the street, lawyers may have an almost priestly
appearance - they employ their incomprehensible terminology and execute
their esoteric rites. Unfortunately, some attorneys revel in the feeling
of exclusivity. In the same way, certain emergency managers use acronyms
with meanings shrouded in obscurity to those not initiated in the
fraternity. Clearly, unusual language and rituals distinguish both
groups from the laity as well as each another. This method is the
antithesis to the networking, coordination, linkages, and partnerships
essential to creating an integrated emergency management system. It is
essential for legal counsel and emergency manager to rely on and
comprehend each other as equal partners for litigation mitigation to be
successful.

Attorneys also find themselves unable to locate resources that explain
the process for engaging in litigation mitigation. Their professional
training at law schools does not include this topic, in general. The
majority of such institutions rely on a "case study" approach first
created hundreds of years ago. Another barrier is the emphasis placed by
law schools on if a case is ready to take to Court. Undertaking a
pro-active pursuit such as mitigation litigation is contrary to the
training and long-standing traditions of the law.

Another factor in lessening the likelihood of networking partnerships
between emergency managers and lawyers is the developing nature of the
legal market. On one hand, corporate clients insist on a firm that can
"do it all," resulting in ongoing pressure to make firms ever larger.
Simultaneously, business clients often look at firms as sources of
skilled operators who can manipulate the legal system rather than as
places to go for trustworthy counselors. Often, companies pay no
attention to lawyers' guidance unless it matches with what they wish to
hear. The networking and trust needed for a quality litigation
mitigation association do not exist in such circumstances. Rather, the
lawyer is viewed as a remote, unfamiliar "legal information engineer"
who is a tool instead of a partner (Caplan, 2003).

Another major obstacle between attorneys and emergency managers is cost.
Although an emergency manager will typically have access to the advice
of a city or county attorney, he or she may need more specialized
assistance, which may cost a significant amount. A specialist attorney's
professional advice may run as much as several hundred dollars an hour,
or more. Clearly, lawyers run more per hour than some other types of
mitigation. Still, considering the down side of a lack of litigation
mitigation, one is hard pressed to see a valid argument against this
enhanced safety. An option that may provide for cost controls is
negotiating an arrangement with a firm to provide discounted hourly
rates in return for an assured number of hours yearly.

From the government side, several significant obstacles exist. Smaller
units of government may have attorney advisors who are local
practitioners. These lawyers often collect decreased hourly wages for
their government work compared with what they collect for normal hourly
fees. The result of this arrangement may be that government work gets
done only when ordinary business is lacking. This schedule often results
in a conflict with the unit's desire for the attorney's help. Another
difficulty is that rural units hardly ever make available funding for
Continuing Legal Education (CLE) for their lawyer employees or
contractors. The untrained country attorney may prove to be unable to
give the high-level guidance the unit needs. The lack of CLE training
necessary to bring the lawyer up to speed merely emphasizes the
difficulty. The lawyer in such circumstances might be in danger of
committing malpractice by advising beyond his or her ability. In some
cases, the attorney advising the local unit receives the contract for
legal services thanks to political activism instead of any actual
knowledge of the practice area. A unit's attorney is often appointed on
a political basis, even when the City Manager is a merit position. The
effect of this situation may not be ineffective counsel, but it may
result in regular changes. The potential exists here for recurring legal
fees for getting on top of things as well as conflicting legal guidance.

**Future Developments**

In late 2004, the 9-11 Commission officially endorsed adoption of the
National Fire Protection Association 1600 "Standard on
Disaster/Emergency Management and Business Continuity Programs, 2004
Edition" (NFPA 1600) (NFPA, 2004) as the national preparedness
benchmark. On December 17, 2004, (The White House, 2004) President Bush
signed the Intelligence Reform and Terrorism Prevention Act of 2004
(IRTP Act), (Intelligence and Terrorism Prevention Act, 2004) which
recognizes NFPA 1600 as a "voluntary" national preparedness norm. NFPA
1600 and other documents such as the Capability Assessment for Readiness
(CAR), constitute the core of the Emergency Management Accreditation
Program (EMAP) (EMAP, 2005). The accreditation procedure includes
application, self-assessment, on-site assessment by an outside review
team, committee and commission review of conformity with the EMAP
Standard, and re-certification every five years. Adoption of NFPA 1600
is not yet mandatory. It might be said that EMAP is well on its way to
becoming the United States' *de facto* emergency management standard. As
other emergency management programs are accredited under the standard,
it becomes more likely that a Court might hold all emergency management
groups to the NFPA 1600 criterion. One nationally known expert believes
that "synergy is already building between NFPA 1600, EMAP and the NIMS
Integration Center. It's just a matter of time before they are
incorporated into NIC's requirements."^7^ In fact, mandatory adoption of
NFPA 1600 into NIMS will be an important part of standards to be set by
the NIMS Integration Center.^8^ Emergency management professionals will
need to understand and comply with the full dimension of their legal
obligations under NIMS, including NFPA 1600 and EMAP.

Other legal needs that will doubtless receive more attention in the
future include liability issues in the aftermath of terrorism events. In
the wake of the 9-11 attacks, insurance policies are being re-written to
exclude terrorism coverage or to make premiums for adding it
prohibitively expensive. The result is that businesses and units of
government find themselves to be self-insured for this huge potential
liability. Every state should examine its immunity statutes to see if
the exclusions for third party acts are broad enough to protect from
liability from terrorism events. Going hand in hand with that
examination, of course, will be the need for units of government to
ensure that their steps to provide for the safety of visitors and
employees in their offices are appropriate for the dangers involved. As
with the private sector, this will involve examining what similar units
of government are doing, and being at least as safe. For example, state
governments that do not provide for screening of people and parcels
entering their premises might be exposed to liability in the event of a
suicide terrorist bomber entering their premises unchallenged and
causing death or injuries.

Interstate and intrastate mutual aid are currently the focus of
examination by emergency response and emergency management across the
nation, with NEMA making significant efforts to ensure that common
language is available for both. Mutual aid agreements will be required
under NIMS in the near future.^8^

Notwithstanding the obstructions discussed previously, litigation
mitigation offers benefits that make its adoption highly advisable. As a
mitigation step, it is a natural part of comprehensive emergency
management. This approach is challenging. Both the attorney and the
emergency management client must be willing to commit to a partnership
that is based on mutual trust and respect. Both groups need to obtain
knowledge of pertinent legal standards so that they may support one
another. The attorney must understand the client's business in order to
provide the best legal advice. Litigation mitigation must be actively
practiced to fully address vulnerability to the hazard of liability.

Whether a rights-based approach to vulnerability is a trend that will
grow in the future or a fad confined to nations with significant
socialist leanings is a matter well worth following. Most likely, an
impetus to create such rights worldwide will result in significant
resistance from those nations whose assets are likely to be
redistributed by such an approach. As those nations (like the United
States) are powerful, their opposition may make difficult reaching a
common agreement on universal enactment of fundamental human rights.

**Conclusion**

Law and emergency management are inextricably bound together. In the
United States, emergency management law has a history of over 200 years.
That history reveals emergency management law as ever more all
embracing. Some nations have taken emergency management much farther,
incorporating disaster relief, housing, and health care as "fundamental
human rights" protected by Constitutional guarantee. This approach
changes emergency management law into a social engineering standard that
acts to redistribute wealth.

Emergency management legal standards in the United States are in the
process of evolution as well. The NRP, NIMS, NFPA 1600, and EMAP are all
working together to bring national uniformity to the practice of
emergency management.^9^ In the U.S., legal norms for emergency
management focus on greater professionalization and better execution of
traditional functions. Concentrating on the nuts and bolts of emergency
management, rather than creating new rights that incidentally affect the
discipline, appears to be the direction of future legal development in
the United States.

**Endnotes**

^1^ Id. at 46. One feels constrained to point out that such needs are
typically "rights" only in socialist countries.

^2^ See, e.g., Indiana Code 10-14-3-12  (d) (1) (2005).

(d)In addition to the governor\'s other powers, the governor may do the
following while the state of emergency exists:\
        (1) Suspend the provisions of any regulatory statute prescribing
the procedures for conduct of state business, or the orders, rules, or
regulations of any state agency if strict compliance with any of these
provisions would in any way prevent, hinder, or delay necessary action
in coping with the emergency.

^3^ E.g. Zimbabwe, Zambia, Algeria, Angola, Armenia, and India. "Public
Law in Vulnerability Reduction" 54.

^4^ See, e.g. Indiana Code 10-14-3-1(a) (2005).\
\"Disaster\"\
**    ** Sec. 1. (a) As used in this chapter, \"disaster\" means an
occurrence or imminent threat of widespread or severe damage, injury, or
loss of life or property resulting from any natural or manmade cause.\
    (b) The term includes the following:\
        (1) Fire.\
        (2) Flood.\
        (3) Earthquake.\
        (4) Wind.\
        (5) Storm.\
        (6) Wave action.\
        (7) Oil spill.\
        (8) Other water contamination requiring emergency action to
avert danger or damage.\
        (9) Air contamination.\
        (10) Drought.\
        (11) Explosion.\
        (12) Riot.\
        (13) Hostile military or paramilitary action.\
*As added by P.L.2-2003, SEC.5.*

^5^ See, e.g., Indiana Code 10-14-3-2 (2005).\
\"Emergency management\"\
     Sec. 2. As used in this chapter, \"emergency management\" means the
preparation for and the coordination of all emergency functions, other
than functions for which military forces or other federal agencies are
primarily responsible, to prevent, minimize, and repair injury and
damage resulting from disasters. The functions include the following:\
        (1) Firefighting services.\
        (2) Police services.\
        (3) Medical and health services.\
        (4) Rescue.\
        (5) Engineering.\
        (6) Warning services.\
        (7) Communications.\
        (8) Radiological, chemical, and other special weapons defense.\
        (9) Evacuation of persons from stricken areas.\
        (10) Emergency welfare services.\
        (11) Emergency transportation.\
        (12) Plant protection.\
        (13) Temporary restoration of public utility services.\
        (14) Other functions related to civilian protection.\
        (15) All other activities necessary or incidental to the
preparation for and coordination of the functions described in
subdivisions (1) through (14).

^6^ HS Act § 507 ROLE OF FEDERAL EMERGENCY MANAGEMENT AGENCY.

\(a\) IN GENERAL.---The functions of the Federal Emergency Management
Agency include the following:

\(1\) All functions and authorities prescribed by the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.).

\(2\) 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---

^7^ HS Act § 430 (c) RESPONSIBILITIES.---The Office for Domestic
Preparedness shall have the primary responsibility within the executive
branch of Government for the preparedness of the United States for acts
of terrorism, including---

\(6\) as the lead executive branch agency for preparedness of the United
States for acts of terrorism, cooperating closely with the Federal
Emergency Management Agency, which shall have the primary responsibility
within the executive branch to prepare for and mitigate the effects of
nonterrorist-related disasters in the United States;

^8^Telephone interview May 9, 2005 with Kay C. Goss, CEM, Electronic
Data Systems Corporation, US Government Solutions, Senior Advisor for
Homeland Security, Business Continuity Planning, and Emergency
Management Services.

^9^Interview with Acting Director Gil Jamieson, NIMS Integration Center,
Washington, DC (June 3, 2005). "I see the prospects of their being part
of NIMS for emergency management. I have met with both the NFPA 1600
committee and the EMAP people, and I endorse the process, but it needs
to evolve and be more inclusive of NIMS."

**References**

Caplan. 2003. "Law Firms Become Big Business as Well." *Wilmington News
Journal*. April 18, at A 17.

EMAP.2005. Recent and Upcoming Activities, Accessed at
http://www.emaponline.org/ on October 20, 2005

FEMA. 2005a. Retrieved from <http://www.fema.gov/about/history.shtm>. on
October 20, 2005

FEMA. 2005b. "Vulnerability Assessment." Accessed at
<http://www.fema.gov/pdf/fima/155/e155_unit_iv.pdf> on October 10, 2005

FEMA. 2005c. "Emergency Management: Setting The Scene." Accessed at
<http://www.training.fema.gov/emiweb/downloads/is1_Unit1.pdf> on October
15, 2005

FEMA.2005d. "Principles of Emergency Management. FEMA's Independent
Study." Accessed at
<http://www.training.fema.gov/emiweb/downloads/IS230.doc> on October 17,
2005

FEMA. 2005e. "Professional Development Series." Accessed at
<http://www.training.fema.gov/emiweb/PDS/> on October 7, 2005

Handmer, John and Monson, Rebecca. 2004. "Does a Rights Based Approach
Make a Difference? The Role of Public Law in Vulnerability Reduction*,"
International Journal of Mass Emergencies and Disasters* 22(3): 43.
(November 2004).

Homeland Security Presidential Directive 5. 2003. "Paragraph 16."
February 28.

Intelligence Reform and Terrorism Prevention Act. 2004. S.2845 ENR.
Accessed at
http://thomas.loc.gov/cgi-bin/query/D?c108:4:./temp/\~c108150E9Q::
\[Henceforth IRTP Act\].

Nicholson, William C. 2003a. *Emergency Response and Emergency
Management Law.* 236-238, Springfield, IL: Clarles C. Thomas Publisher,
Ltd.

Nicholson, William C. 2003b. "Integrating Local, State and Federal
Responders and Emergency Management: New Packaging and New Controls,"
*Journal of Emergency Management* 1(15), 15.

Nicholson, William C., 2003c. "Legal Issues in Emergency Response to
Terrorism Incidents Involving Hazardous Materials: The Hazardous Waste
Operations and Emergency Response ("HAZWOPER") Standard, Standard
Operating Procedures, Mutual Aid and the Incident Command System."
*Widener Symposium Law Journal* 9 (2): 295, 298-300.

National Incident Management System 127. 2005. Accessed at
<http://www.fema.gov/nims/> on October 23, 2005.

The National Response Plan 63. 2005. Accessed at
<http://www.dhs.gov/dhspublic/interapp/editorial/editorial_0566.xml> on
October 17, 2005

Nicholson, William C., 2003d*. Emergency Response and Emergency
Management Law: Cases and Materials*, Springfield, IL. Charles C. Thomas
Publisher, Ltd.

Nicholson, William C. 2003e. "Litigation Mitigation: Proactive Risk
Management in the Wake of the West Warwick Club Fire" *Journal of
Emergency Management,* 1(2).

NFPA. 2004. "NFPA 1600 Standards on Disaster/ Emergency Management and
Business Continuity Programs." Accessed at
<http://www.nasttpo.org/NFPA1600.htm> October 14, 2005

Pine, John, 1991. Liability Issues, Chapter 11 of Emergency Management,
Principles and Practice for Local Government. Washington, D.C.:
International City Management Association.

The White House. 2003. "Homeland Security Presidential Directive 5,
Subject: Management of Domestic Incidents." February 28.

The White House. 2004. "President Signs Intelligence Reform and
Terrorism Prevention Act." December 17.

United States Code. 2005. §§ 11001-11050; § 11001 (a, b, c); § 11003
(a).

Varley, Anne. 1994. Disasters, Development and the Environment.

Waugh, William L., Jr. 2002. "The "All-Hazards" Approach Must be
Continued 2" *Journal of Emergency Management.* 1 (2): 11.

107th Cong. 2002. Homeland Security Act of 2002, H.R. 5005, (enacted)
\[hereinafter HS Act\] § 1(a-d).

[^1]: ^\*^ **William Charles Nicholson** is a nationally known expert in
    homeland security law and policy.  He serves as an Assistant
    Professor in the Department of Criminal Justice at North Carolina
    Central University.  Nicholson previously was an Adjunct Professor
    at Widener University School of Law, where he created a course
    entitled "Terrorism and Emergency Law." He also served as an Adjunct
    Professor at the University of Delaware, where he taught his
    "Homeland Security Law and Policy" course.  Nicholson was previously
    employed as General Counsel to the Indiana State Emergency
    Management Agency, Indiana Department of Fire and Building Services,
    and Public Safety Training Institute. Nicholson is also a Member of
    the Editorial Board, *Best Practices in Emergency Services: Today\'s
    Tips for Tomorrow\'s Success* as well as the Editorial Board,
    *Journal of Emergency Management.* Recent notable publications
    include: two books, *Emergency Response and Emergency Management
    Law,* Charles C. Thomas Publisher, Ltd. (2003) and *Homeland
    Security Law and Policy*, Charles C. Thomas Publisher, Ltd. (2005),a
    chapter for the *McGraw-Hill Handbook of Homeland Security* entitled
    "Legal Issues for Businesses in Responding to Terrorist Events," and
    "Legal Issues in Emergency Response to Terrorism Incidents Involving
    Hazardous Materials: The Hazardous Waste Operations and Emergency
    Response ("HAZWOPER") Standard, Standard Operating Procedures,
    Mutual Aid and the Incident Command System," *Widener Symposium Law
    Journal*, Volume 9, Number 2, 295 (2003).  Nicholson earned a B.A.
    from Reed College in Portland, OR and a Juris Doctor from Washington
    and Lee University's School of Law in Lexington, VA.