# Presentation: 100783

## 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

- 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

## 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

## 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

## 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

## 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

## 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

## 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

## 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

## 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

## 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

## 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

## 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

## 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

## 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

## 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

## FEMA During1990s - 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

## 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)

## 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

## 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

## 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

## 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)

## 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

## 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

## 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

## 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.

## 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—

## 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

## 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

## 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

## 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)

## 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

## 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

## 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

## 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

## 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

## 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

## National Response Plan (NRP)

- NRP contents
- Base plan
- Appendices
- Emergency Support Functions (ESFs)
- Support Annexes
- Incident Annexes

## 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

## 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

## 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

## 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”

## 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?

## 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

## Hurricane Katrina and FEMA

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

## 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?

## 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

## 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

## 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

## Post-Katrina Emergency Management Reform Act

- Administrator is principal advisor to President, Homeland Security Council, and DHS Secretary for all emergency management issues in United States
- After informing DHS Secretary, Administrator may make recommendations to Congress
- President may designate FEMA Administrator Cabinet status during natural disasters, acts of terrorism, or other man-made disasters

## EM Reform Act – FEMA Responsibilities

- Supervise grant programs
- Supervision of National Response Plan – NIMS Center
- Supervision of credentialing – with EMAC
-  Supervise plans for
- continuity of operations
- continuity of government; and
- continuity of plans

## EM Reform Act – FEMA Responsibilities

- Ensure acquisition of operable and interoperable communications capabilities
- Run National Response Coordination Center

## Post-Katrina Emergency Management Reform Act

- Sec. 505 FEMA Gains Directorate of Preparedness – ODP now under FEMA
- Sec.506 FEMA maintained as distinct entity in DHS
- DHS Secretary may not reduce the authorities, responsibilities, or functions of FEMA or its capability
- Sec. 517 New Office for the Prevention of Terrorism – not under FEMA

## Personnel Issues:Addressing the Revolving Door

- HR 5441 Title VI `Post-Katrina Emergency Management Reform Act of 2006‘ Subtitle B Personnel Provisions
- Address unprecedented turnover at FEMA Subpart I of part III of Title 5 USC amended
- Sec. 10102 Mandates Strategic Human Capital Plan
- Workforce Gap Analysis
- Plan of Action: address skills, competencies gaps
- Discussion of needs, capabilities
- 5 yearly updates

## Personnel Issues:Addressing the Revolving Door

- Sec. 10103 Career Paths - Identify
- education, training, experience, and assignments necessary for career progression
- Sec. 10104 Recruitment Bonuses 25 %
- Sec. 10105 Retention Bonuses 25 %
- Sec. 10106 Vacancy Rate Report
- Sec. 622 Employee Rotation Program
- Sec. 623 Homeland Security Education Program Establishes graduate-level Homeland Security Education Program in National Capital Region
- HUGE effort to address long-standing problems

## Continuing Issues  - DHS Future Pressures Due to Law 

- DHS is huge grant making, contract making agency
- Little regulatory authority except in law enforcement arena
- In latter over 60% of agency can retire in 20 as opposed to normal 30 years as civil servants
- This results from fact that they carry both guns and badges
- Need for many additional employees, particularly law enforcement
- 28 CFR Part 65 et al. specifies who is in law enforcement community and that “emergency law enforcement assistance” must come from DOJ

## Continuing Issues  - 9/11 Commission Recommendations 

**Implementing the 9/11 Commission Recommendations Act of 2007 (H.R.1) **
- Title I--Risk-Based Allocation Of Homeland Security Grants
- Title II--Ensuring Communications Interoperability For First Responders
- Title III--Strengthening Use Of A Unified Incident Command During Emergencies
- Sec. 301. National Exercise Program Design.
- Sec. 302. National Exercise Program Model Exercises.
- Sec. 303. Responsibilities Of Regional Administrators Of The Federal Emergency Management Agency.
- Title IV--Strengthening Aviation Security
- Title V--Strengthening The Security Of Cargo Containers

## Continuing Issues  - 9/11 Commission Recommendations

- Implementing the 9/11 Commission Recommendations Act of 2007 (H.R.1)
- Title VI--Strengthening Efforts To Prevent Terrorist Travel
- Subtitle A--Human Smuggling And Trafficking Center Improvements
- Subtitle B--International Collaboration To Prevent Terrorist Travel
- Subtitle C--Biometric Border Entry And Exit System
- Title VII--Improving Intelligence And Information Sharing With Local Law Enforcement And First Responders
- Subtitle A--Fusion And Law Enforcement Education And Teaming (Fleet) Grant Program
- Subtitle B--Border Intelligence Fusion Center Program
- Subtitle C--Homeland Security Information Sharing Enhancement
- Subtitle D--Homeland Security Information Sharing Partnerships
- Subtitle E--Homeland Security Intelligence Offices Reorganization

## Continuing Issues  - 9/11 Commission Recommendations

- Implementing the 9/11 Commission Recommendations Act of 2007 (H.R.1)
- Title VIII--Protecting Privacy And Civil Liberties While Effectively Fighting Terrorism
- Subtitle A--Privacy And Civil Liberties Oversight Boards
- Subtitle B--Enhancement Of Privacy Officer Authorities
- Title IX--Improving Critical Infrastructure Security
- Title X--Transportation Security Planning And Information Sharing
- Title XI--Private Sector Preparedness

## Continuing Issues  - 9/11 Commission Recommendations

- Implementing the 9/11 Commission Recommendations Act of 2007 (H.R.1)
- Title XII--Preventing Weapons Of Mass Destruction Proliferation And Terrorism
- Subtitle A--Repeal And Modification Of Limitations On Assistance For Prevention Of Wmd Proliferation And Terrorism
- Subtitle B--Proliferation Security Initiative
- Subtitle C--Assistance To Accelerate Programs To Prevent Weapons Of Mass Destruction Proliferation And Terrorism
- Subtitle D--Office Of The United States Coordinator For The Prevention Of Weapons Of Mass Destruction Proliferation And Terrorism
- Subtitle E--Commission On The Prevention Of Weapons Of Mass Destruction Proliferation And Terrorism
- Title XIII--Nuclear Black Market Counter-Terrorism Act

## Future Developments for Homeland Security and Emergency Management Law

- We will explore these and many more relevant issues in this class.
- Questions or comments?