Chapter Chapter 2
Section Planning a Proactive Federal Response
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Planning a Proactive Federal Response
Under the Stafford Act, requests for major disaster declarations must be made by the Governor of the affected State. The Governor’s request must be based on “a finding that the disaster is of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments and that Federal assistance is necessary.”67 Emergency declarations can be made in the same manner or, in limited circumstances, can be made by the President unilaterally.68
The system for providing Stafford Act assistance, set forth in the NRP and FEMA regulations, reflects the American system of federalism, allocating roles and responsibilities between levels of government by utilizing a layered system that requires local governments to first request assistance from their State. States, in turn, must use their own resources, if available, before requesting Federal assistance. As a prerequisite to major disaster assistance under the Stafford Act, a requesting Governor must “take appropriate response action under State law and direct execution of the State's emergency plan.”69 Similarly, State emergency operations plans are based on this layered system. For example, the State of Louisiana Emergency Operations Plan states that “ t he initial actions . . . are conducted by local government. Local authorities will exhaust their resources, and then use mutual aid agreements with volunteer groups, the private sector and/or neighboring parishes.”70 When local and State governments require additional resources, they generally call upon neighboring jurisdictions and other States through mutual assistance agreements and through the Emergency Management Assistance Compact (EMAC), a Congressionally ratified agreement71 that provides form and structure to interstate mutual aid, and through which States make available to each other in time of crisis their emergency response assets, such as National Guard troops.72
Traditionally, it is only after local, State, and mutual assistance resources are depleted, or prove insufficient, that the Federal government is requested to help. The Louisiana Emergency Operations Plan further explains that, “State assistance will supplement local efforts and federal assistance will supplement State and local efforts when it is clearly demonstrated that it is beyond local and State capability to cope with the emergency/disaster.”73 Should State and affected local governments become overwhelmed, the President may declare either a major disaster or emergency through his authorities under the Stafford Act.
After a Stafford Act declaration, FEMA, on behalf of the Federal government, receives State requests for assistance and fulfills them by tasking other Federal departments or agencies with the appropriate expertise or resources to meet the specific needs. This is often referred to as a “pull” system for Federal assistance because local and State governments must identify needs and make specific requests for assistance before the Federal government can deliver—they “pull” assistance from the Federal government. Equally important to understanding the current “pull” system is the method in which Federal assistance is delivered to those in need—relying on the State as an intermediary between the Federal government and any other entity. In many cases, the Federal government will satisfy a State request by providing commodities or assets to the State. In so doing, the Federal government is helping the State meet the needs of their local governments and first responders, as well as various operational components of the State. The Federal government does not always directly deliver its assistance to local governments or others in need. The State’s role has been compared to retail sales in terms of organization, delivery, and management. Under this description, the Federal government’s role is comparable to wholesale. This generally works well and should continue in the majority of instances.
Emergency vs. Major Disaster
Under the Stafford Act, the President can designate an incident either as an “emergency” or a “major disaster.” Both authorize the Federal government to provide essential assistance to meet immediate threats to life and property, as well as additional disaster relief assistance. The President may, in certain circumstances, declare an “emergency” unilaterally, but may only declare a “major disaster” at the request of a Governor that certifies the State and affected local governments are overwhelmed. Under an “emergency,” assistance is limited in scope and may not exceed $5 million without Presidential approval and notification to Congress. In contrast, for a major disaster, the full complement of Stafford Act programs can be authorized, including long term public infrastructure recovery assistance and consequence management.
However, in some instances the State and local governments will be overwhelmed beyond their ability to satisfy their traditional roles in this system. Indeed, in some instances, State and local governments and responders may become victims themselves, prohibiting their ability to identify, request, receive, or deliver assistance. This is the moment of catastrophic crisis—the moment when 911 calls are no longer answered; the moment when hurricane victims can no longer be timely evacuated or evacuees can no longer find shelter; the moment when police no longer patrol the streets, and the rule of law begins to break down.
During the development of the NRP, such a catastrophic scenario was considered and planning for such an eventuality began. The NRP includes a Catastrophic Incident Annex which “establishes the context and overarching strategy for implementing and coordinating an accelerated, proactive national response to a catastrophic incident.”74 The intent behind this Annex was to plan for a case in which the Federal response posture would switch, upon a declaration by the Secretary of Homeland Security of a catastrophic incident, from the traditional “pull” system to one that includes a proactive “push” system, moving assets to the affected areas without waiting for State requests. Under the current Catastrophic Incident Annex, however, the general operating presumption is that Federal pre-deployed resources remain at staging areas until requested by the State and local incident command authorities. Thus, this Annex provides for proactive deployment of resources to the area, but the actual employment of the resources depends to a good degree on requests from State or local authorities and very often their participation in delivering the aid to those in need.
The National Response Plan defines a catastrophic incident as:
Any natural or man-made incident, including terrorism, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the population, infrastructure, environment, economy, national morale, and/or government functions. A catastrophic event could result in sustained national impacts over a prolonged period of time; almost immediately exceeds resources normally available to State, local, tribal, and private sector authorities in the impacted area; and significantly interrupts governmental operations and emergency services to such an extent that national security could be threatened.75
Because it was recognized that a proactive Federal response can create strains on Federal resources and presents practical challenges for Federal responders not familiar with the terrain or infrastructure in a disaster area, the NRP Catastrophic Incident Annex required that a “more detailed and operationally specific NRP Catastrophic Incident Supplement . . . be approved and published independently of the NRP Base Plan and annexes.”76 The Catastrophic Incident Supplement (CIS) is meant to address the “resource and procedural implications of catastrophic events to ensure the rapid and efficient delivery of resources and assets, including special teams, equipment, and supplies that provide critical life-saving support and incident containment capabilities.”77 The draft CIS by its current terms only applies to short notice or no notice events. On August 29, at the time Hurricane Katrina hammered into the Gulf Coast, the draft CIS had not been finalized and promulgated. It began final circulation for approval as part of the regular Federal staffing process shortly after Katrina made landfall.78
Ultimately, when a catastrophic incident occurs, regardless of whether the catastrophe has been a warned or is a surprise event, the Federal government should not rely on the traditional layered approach and instead should proactively provide, or “push,” its capabilities and assistance directly to those in need. When the affected State’s incident response capability is incapacitated and the situation has reached catastrophic proportions, the Federal government alone has the resources and capabilities to respond, restore order, and begin the process of recovery. This is a responsibility that must be more explicitly acknowledged and planned for in the NRP, and we must resource, train, and equip to meet this obligation when such a contingency arises. It is also important that we work with State and local governments to ensure they are better prepared to respond immediately, until Federal resources can arrive.
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