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

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Introduction: A Short History of Homeland Security and

Emergency Management Law

William C. Nicholson, Esq.Department of Criminal JusticeNorth Carolina Central University

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Opening Question

Why does the history of emergency management law matter?

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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

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• 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

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• 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

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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

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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

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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

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• 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

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• 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

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• 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

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• 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

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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

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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

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• 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

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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

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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

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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

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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)

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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

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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

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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

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• 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)

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• 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

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• 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

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• Homeland Security Act of 2002

• Terrorism focus

• Natural hazards deemphasized

• Structural complement to USA PATRIOT Act

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• 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.

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• 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—

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• 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

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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

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• 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

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• 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)

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• 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

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• 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

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• 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

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• 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

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• 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

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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

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National Response Plan (NRP)

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

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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

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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

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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

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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”

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• 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?

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• 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

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Hurricane Katrina and FEMA

• Hurricane Katrina strikes

• Response at all levels criticized

• Calls to revive FEMA

• Emphasize natural hazards

• 1980s all over again?

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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?

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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

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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

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• 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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• 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

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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

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EM Reform Act – FEMA Responsibilities

• Ensure acquisition of operable and interoperable communications capabilities

• Run National Response Coordination Center

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• 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

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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

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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

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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

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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

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• 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

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• 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

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• 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

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Future Developments for Homeland Security and

Emergency Management Law

• We will explore these and many more relevant issues in this class.

• Questions or comments?

Documents

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