Public Emergency Laws & Regulations

Journal of Homeland Security and Emergency Management Volume 9, Issue 2

2012

Article 7

Public Emergency Laws & Regulations: Understanding Constraints & Opportunities Lydia R. Wilson JD, MA, CPP, University of Maryland University College Robert McCreight Ph.D., George Washington University

Recommended Citation: Wilson, Lydia R. JD, MA, CPP and McCreight, Robert Ph.D. (2012) "Public Emergency Laws & Regulations: Understanding Constraints & Opportunities," Journal of Homeland Security and Emergency Management: Vol. 9: Iss. 2, Article 7. DOI: 10.1515/1547-7355.2034 ©2012 De Gruyter. All rights reserved. Authenticated | [email protected] Download Date | 5/6/14 8:08 PM

Public Emergency Laws & Regulations: Understanding Constraints & Opportunities Lydia R. Wilson JD, MA, CPP and Robert McCreight Ph.D.

Abstract The thrust of this article is to provide emergency managers with a general introductory overview of major issues involved in public emergency law and review some basic issues which comprise elements of the legal framework of crisis management. This article is designed to be an informative piece for emergency managers about the law as it relates to handling a crisis event. The goal is to increase awareness of some of the major legal issues associated with a crisis regardless of magnitude and determine the extent to which this information may guide planning, preparedness and response options for the various local and state governments involved. This article, however, the authors outline a way to encourage a dialogue between emergency managers and corporate counsel, at least annually, to review legal issues and trends. The authors’ does not present legal advice. Instead, a primary goal is to clarify and illustrate some of the emergency manager’s legal duties and point out the possible risks of legal liability. KEYWORDS: law and emergency management, legal, law, crisis management, crisis, legal framework, posse comitatus, US Constitution, The Insurrection Act, The Stafford Act, FEMA, Federal Emergency Management Agency, Executive Orders, National Response Framework, Title 10, Title 32, United States Code, American Bar Association, Hurricane Katrina, Emergency Management Assistance Compact, EMAC mutual aid, federalism, accountability, duty, due dilligence, Tenth Amendment, 10th Amendment, Justice Kennedy, Printz, Berkovitz, Dillon's Rule, NFPA 1600, EMAP, Emergency Management Accreditation Process, Homeland Security Act of 2002, NIMS, National Incident Management System, Performance Partnership Agreement, PPA

Authenticated | [email protected] Download Date | 5/6/14 8:08 PM

Wilson and McCreight: Public Emergency Laws & Regulations

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INTRODUCTION Disasters rarely conform to neat jurisdictional boundaries when they strike. Often, particularly in major metropolitan areas, a disaster will involve response from the federal government, several states, and perhaps a dozen local governmental agencies. At a time when responders must make quick, real-time decisions, questions of jurisdiction and the division of power and resources can compound an already difficult situation. Emergency managers have enough to worry about without becoming legal experts on top of other tasks involving safety of personnel. Nevertheless, it is important to be aware of some basic legal issues that may be attached to everyday operations and decisions that emergency managers often confront. This brief review is intended to highlight some of the major concerns of which emergency managers ought to be aware and—in every case, depending upon the local situation—the relevant ordinances and state laws.

SCOPE OF THE ARTICLE This article is designed to inform emergency managers about the law as it relates to crisis management. By highlighting some of the legal issues embedded in ordinary emergency response operations, the authors seek to identify and explain some of the emergency manager’s legal duties and possible risks of legal liability. The purpose is not to provoke fear or indignation, or prevent or forestall the performance of normal emergency operations; rather, it is to shed light on issues that often do not get as much attention as do conventional emergency management issues and to provide information that may guide planning, preparedness, and response options for local and state governments. However, this article does not present legal advice, and the authors are not acting as attorneys. Here, we simply advise that improved awareness is of great value. In all cases, it is recommended that emergency managers and corporate counsel get together at least annually to review legal issues and trends. Effective emergency response requires coordination and communication to avoid the waste of limited resources of time and money. In many instances, unless there is a preexisting professional relationship between them, emergency managers and town attorneys will not often cross each other’s path except for cursory reviews of liability questions, compliance issues involving local ordinances, or situations in which a citizen or business is suing the town for commission of a tort or some form of alleged negligence. Thus, familiarity with the legal implications of emergency management is crucial for emergency managers, and it is strongly urged that regular dialogues be held between the two distinctly different offices to clarify issues and iron out varying perspectives on matters that affect local government.

Published by De Gruyter, 2012

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JHSEM: Vol. 9 [2012], No. 2, Article 7

One major dimension of this topic is the origin and purpose of laws and regulations as they apply to the everyday functions of government and especially those tasks associated with emergency management. Here we examine basic legal imperatives. Another dimension worth examining is the notion of “sins of omission” as well as of “sins of commission” to distinguish between things done in the name of emergency management and things that were not done but apparently should have been. Some examples of the latter include failures to reduce structural vulnerability, to efficiently use resources toward remediation of high-priority hazards and risks, to provide timely and accurate notification of impending disaster, and to respond adequately to a disaster when the event clearly overwhelms the emergency response resources that are deployed.

SOURCES OF LAW Federal Law: The U.S. Constitution Under the supremacy clause of the U.S. Constitution, the federal Constitution, treaties, laws, and regulations are supreme and take precedence over state and local law. This is called “the preemption doctrine.” While the supremacy of federal law and the preemption doctrine may sound simple, however, they can be complex in their application. The main idea is to recognize how the entire scope of emergency management as practiced in the United States is affected by nationally applicable laws. Federal Acts Affecting Local Government

Posse Comitatus: Before local governments in the United States maintained regular police forces, sheriffs would round up men over the age of 15 for use in law enforcement as a posse comitatus—literally, the “power of the country” (Farber et al. 2010, 107, 108). The term later came to mean the federal use of soldiers and citizens for law enforcement during the Reconstruction era in the South, a practice that was controversial and risked the supremacy of civil authority over the military. Accordingly, after the end of Reconstruction, in June 1878, Congress enacted the federal Posse Comitatus Act (18 U.S.C. 1385) to limit the power of the federal government to use the military for law enforcement. The Posse Comitatus Act (which was preceded by the Insurrection Act of 1807 (10 U.S.C. 331, 335)), states: Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the

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Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both. Today, posse comitatus means that courts and policy makers must circumscribe the military’s role in using troops as a domestic police force. The Insurrection Act: In September 2006, in response to the situation after Hurricane Katrina, when New Orleans residents suffered overwhelming looting and underwhelming law enforcement, Congress modified Section 334 of the Insurrection Act of 1807 to authorize the president to disperse “those obstructing the enforcement of the laws.” Thus, the president may employ the armed forces, including the National Guard in federal service, to restore public order and enforce the laws of the United States when, as a result of natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, . . . the president determines that domestic violence has occurred to such an extent that the constituted authorities of the state or possession are incapable of maintaining public order to suppress in any state, any insurrection, domestic violence, unlawful combination or conspiracy (McGuire 2012). The Stafford Act: The Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq. (1974)) 1 also grants the president broad powers that may be invoked in the event of domestic emergencies. For example, upon a governor’s request, the president may—for a ten-day period before a major disaster or emergency declaration—direct the Department of Defense (DoD) to use its resources “for the purpose of performing on public and private lands any emergency work which is made necessary by such incident and which is essential for the preservation of life and property” (42 U.S.C. 5170b (c)(1)). After a major disaster, the president may call upon the DoD as a “federal agency” to provide “general federal assistance” under Sec. 5170a or “essential assistance” under Sec. 5170b. Additionally, the Stafford Act of 1988 created today’s system in which a presidential disaster declaration triggers financial and physical assistance from the Federal Emergency Management Agency (FEMA). Post-Katrina Acts: Even though FEMA is now part of the Department of Homeland Security, the Stafford Act remains good law as amended by the Disaster 1

The Robert T. Stafford Disaster Relief and Emergency Assistance Act is Pub. L. 93-288, May 22, 1974, 88 Stat. 143, as amended, which is classified principally to chapter 68 (§ 5121 et seq.) of Title 42, The Public Health and Welfare.


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Mitigation Act of 2000 2 and the 2006 Pets Evacuation and Transportation Standards Act, the latter act being another congressional initiative taken in the aftermath of Hurricane Katrina. Together, these laws specifically authorize the president to use the armed forces to help restore public order. Nevertheless, Congress reaffirmed the continued importance of Section 1385 of Title 18 to prohibit the president from using the armed forces to execute the laws (see the Government Intervention Act, 6 U.S.C. 466). In addition, many significant statutes that pertain to terrorism and criminal conduct and that may touch on issues germane to an emergency manager’s scope of duties. It behooves emergency managers to be aware of these statutes and of whether they are already addressed to some extent by federal law. Executive Orders

Another mode of executive authority to act in response to an emergency is through executive orders, either by the president on the federal level, the governor on the state level, or the mayor at the local level. Executive orders have the full force of law and serve to manage government operations. Because Title 10 and Title 32 of the United States Code establish the National Guard as part of the nation’s first-line defense (32 U.S.C. § 102), state governors and, as indicated earlier, even the president may call up the Guard for active duty to respond to domestic emergencies and disasters. Regardless of the applicable and elaborate structures of the Stafford Act, the Homeland Security Act, and the National Response Framework, “emergency response remains in the first instance the responsibility of state and local governments” (Farber et al. 2010, 161). State governors can call upon the resources of the federal government—particularly FEMA—through a governor’s emergency request (44 CFR 206.2). Under this federal provision, when a disaster occurs that overwhelms the resources of state and local authorities, the governor must declare a state of emergency and formally request from the president that FEMA and the federal government respond to the disaster. In analyzing the extent of a governor’s power to act under a state’s police powers, the American Bar Association (ABA) Standing Committee on Law and National Security stated in its Hurricane Katrina Task Force Subcommittee Report: The authority of state and local elected officials to act under a state’s police powers is at its apex during a disaster. Governors are given broad discretion under state constitutions and statutes to take actions deemed necessary to reduce imminent threats to life, property, and public health 2

Public Law 106-390, also called DMA2K, is U.S. federal legislation passed in 2000 that amended provisions of the United States Code related to disaster relief (Chapter 68 of Title 42).

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and safety. They have extraordinary powers, upon declaration of a state of emergency, to commandeer resources, control property, order evacuations, suspend laws and administrative requirements, and take other measures necessary to respond to the emergency (ABA 2006, 14). Hindsight after Hurricane Katrina may have made it clear that the Louisiana governor possessed the authority, for example, to order a more complete evacuation. Yet, even after all the analyses of the Hurricane Katrina response, still unclear are the extent to which the state delegated that authority to local units of government, the extent to which the state retained authority, and the criteria under which a state would exercise that retained authority. The ABA Report, while not carrying the force and effect of law, may be instructive to emergency managers and their government attorneys. The report offers a four-part test for examining the adequacy and use of state and local government authority to respond to catastrophic incidents (ABA 2006, 13): 1. 2. 3. 4.

How did the state express or clarify its authority through statutes or executive orders? How was that authority implemented through plans, procedures, and protocols? In what manner did the state execute that authority during incidents? and How did the state delegate its authority to local units of government?

The answers to these questions, while giving no bright-line answers, will help determine how a state’s authority is being used and whether, in the context of the disaster, that authority is sufficient to respond to the disaster. If the emergency is of a public health nature, a governor may trigger state laws conferring public health authority with a declaration of a “public health emergency.” These laws often overlap with the more general state emergency management laws that a governor will use by declaring “either a ‘general emergency,’ a ‘disaster,’ or both” (Hodge and Anderson 2008). “The declaration typically triggers extraordinary powers vested in the state’s governor” (Farber et al. 2010, 166). Even though every state currently has a law authorizing the declaration of a general emergency, disaster, or both, this area of gubernatorial power deserves a closer examination to determine whether National Guard resources can be available for longer periods of time in cases where extensive disaster damage has occurred and governors request extended Guard support. It is likewise smart to recognize the degree to which liability and related legal issues may arise in connection with Guard activities as opposed to those undertaken by local employees. The degree to which classical sovereign immunity is a sufficient


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defense in all matters of emergency response is just not well understood, and there may be significant variances by state.

Regional/Interstate Emergency Response These state-by-state variances are to some extent, minimized and simplified, when one considers the Emergency Management Assistance Compact (EMAC). EMAC provides a framework for mutual cooperation and allows state governments and affected communities to rely on state and local resources that may be available to meet regional needs more readily than federal resources. Because not all emergencies require a full-blown federal response, EMAC encourages party states “to provide for mutual assistance . . . in managing any emergency or disaster that is duly declared by the governor of the affected state(s)” (Pub. L. No. 104-321, 110 Stat. 3877 (1996)). All fifty states, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands have passed the required legislation for EMAC membership (see www.emacweb.org). According to the U.S. House’s Final Report on Hurricane Katrina, EMAC was a success that “enabled an unprecedented level of mutual aid assistance to reach the disaster area in a timely and effective manner” (U.S. House 2006, 3). From a functional standpoint, EMAC is improved after each large-scale activation of the compact as officials convene to revise standard operating procedures, review lessons learned, and incorporate best practices. From a legal standpoint, the uniformity of EMAC simplifies and streamlines issues of command and control, “liability, workers compensation, reimbursement, and professional licensure—prior to a disaster or emergency when resource needs and timing are critical” (U.S. House 2006, 145). EMAC provides for a decentralized approach to emergency management, along with a uniform and consistent agreement among state members as to legal questions about agency, liability (Article VI), and evacuation (Article X). Yet another undefined area of legitimate inquiry pertains to the scope of a state governor’s powers under Article X of the U.S. Constitution. State “sovereignty” presumes that in times of catastrophic national crisis, state governors may have the power to order or invoke special actions based solely on the circumstances of the immediate crisis. Article X says, among other things, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States,” is reserved to the state. Of course, this is a complex and unsettled area of constitutional law pertaining to the unenumerated and vague reserved powers of state governors, but it simply alerts emergency managers that in extraordinary catastrophies, the governor’s powers may be significantly

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enhanced indirectly or unexpectedly through the presumptive discretionary powers implied in Article X.

State Law Sharing powers between the federal government and the state governments is “federalism.” Under U.S. federalism, the Constitution delegates certain enumerated powers to the federal government, and the federal government may exercise only the power the Constitution grants According to the Tenth Amendment to the Constitution, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” As Justice Kennedy succinctly stated, “The Framers split the atom of sovereignty” (U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring)). This means that unless federal law preempts state law, the states are free to act. Within this freedom for states to act is where a bulk of the law pertaining to emergency management may be found. This is because—unlike the federal government, which requires a specific constitutional grant of authority to act in an emergency—states have police power to protect their citizens’ health, safety, and welfare. According to one state’s law, “emergency management” is “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” (Indiana Code 10-14-3-2). The scope of emergency management law has been said to be “all-inclusive,” even if the enumerated duties—such as firefighting to communications—appears to be limited. Accountability for emergency management may be found in the codified law, but it is also based in the common law of torts. A tort is, simply, “a wrong,” and the most common tort concept applicable to emergency management is negligence. Four elements are necessary for a tort of negligence and for legal liability to attach. The elements are duty, breach, causation, and damage. With respect to duty, “every person has a general obligation to act in a reasonable manner at all times, considering the circumstances” (Nicholson 2006, 393). Liability results when the action or failure to act causes an injury to a person or property. For emergency managers, liability may result from • The failure to perform a duty or comply with a legal duty • The failure to adhere to a plan • The failure to train or supervise properly emergency management workers • The unreasonably poor performance of a duty • The failure to perform duties that are generally accepted as being part of the emergency manager’s responsibilities (Nicholson 2006, 393).


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Local Government Power and the Parallel to Federalism Another less understood aspect of the law involving localities and states is the socalled Dillon’s Rule, according to which local governments are seen as creatures of the state, and questions may arise as to the extent of specific liability that may attach to local governments under certain circumstances. Under Dillon’s Rule, local governments have only those powers that are explicitly assigned to them. Distinct from Dillon’s Rule is the competing philosophy of home rule, which empowers local governments absent contrary directions from their states. These opposing viewpoints in local government law correspond to competing visions of federalism, discussed above. Similarly, many of the issues that stymie federal/state coordination of disaster relief have a parallel in the coordination of statewide relief with local governments. In Printz v. United States (521 U.S. 898 (1997)), the U.S. Supreme Court held that, under the principles of federalism, the federal government may not “commandeer” state executive officers for the purpose of enacting or implementing federal law. “The power of Federal Government would be augmented immeasurably if it were able to impress into its service—and at no cost to itself—the police officers of the 50 States” (Printz at 922). The dissenters, however, considered the implications of this separation of power in times of national emergency. For the dissent, Justice Stevens wrote, Matters such as the enlistment of air raid wardens, the administration of a military draft, the mass inoculation of children to forestall an epidemic, or perhaps the threat of an international terrorist, may require a national response before federal personnel can be made available to respond (Printz at 940). With the hindsight afforded by Hurricane Katrina and the totality of events arising from September 11, 2001, federal funding has become increasingly tied to state and local compliance with federal standards and regulations. Emergency managers should be aware that the dissent’s viewpoint more accurately reflects the true relationship between the federal government and the state and local units. As if these requirements were not enough, in developing the powers of a growing federal bureaucracy charged with the task of implementing congressionally mandated laws, each agency had the authority given to it to further elaborate on how the laws would be implemented and to create standards, criteria, and other aspects of what we refer to as “federal regulations.” Just as the law binds us, federal regulations often provide additional legal requirements for us to meet.

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FEDERAL STANDARDS AND REGULATIONS NFPA 1600 In July 2004, the 9/11 Commission formally endorsed National Fire Protection Association (NFPA) 1600 as the new standard for emergency management and business continuity programs. Similarly, the National Emergency Management Association endorsed NFPA 1600 as an appropriate standard for emergency management. By establishing a shared set of norms, NFPA 1600 has ensured that “all emergency management and business continuity programs . . . comply with all relevant laws, policies and industry practice” (Nicholson 2006, 393).

Emergency Management Accreditation Process NFPA 1600 provides a foundation for the Emergency Management Accreditation Process (EMAP), which is rapidly becoming another standard for emergency management (see www.emaponline.org). EMAP accreditation is voluntary, but because a great number of authorities 3 endorse the standard, it is likely that a court may hold all authorities to this norm (Nicholson 2006, 397).

National Incident Management System In the Homeland Security Act of 2002, Congress addressed the need for a common incident management system. In response, on March 1, 2004, the Department of Homeland Security released the National Incident Management System (NIMS), which sets a national industry standard for planning. “NIMS requires EOPs [emergency operations plans], corrective action and mitigation plans, and recovery plans” (Nicholson 2006, 412). Because NFPA 1600 requires that plans incorporate industry standards, meeting NIMS standards is mandatory for receipt of federal funds, including emergency management performance grants (EMPGs), and failure to plan according to NIMS requirements may result in liability. In addition, Occupational Safety and Health Administration (OSHA) regulations, EPA regulations, labor regulations, communication regulations, and 3

The following organizations support EMAP: FEMA, the National Emergency Management Association, International Association of Emergency Managers, the U.S. Department of Transportation, the Association of State Flood Plain Managers, the Institute for Business and Home Safety, the International Association of Fire Chiefs, the National Association of Counties, the National Association of Development Organizations, the National Conference of State Legislatures, the National Governors Association, the National League of Cities, and the U.S. Environmental Protection Agency (Nicholson 2006, 397).


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energy regulations, among others, often further impinge on state and local governments in the performance of their daily functions. As the old saying goes, “ignorance of the law is no excuse” for not complying with it, so local and state governments must be equally aware of these regulations.

Local Governments and EMPGs Before the federal government will release funds to local emergency management organizations, local units of government must have a Performance Partnership Agreement (PPA) and a Cooperative Agreement (CA) with FEMA. “The PPA is a strategic plan, and is revised on a five year timetable. The CA is an accord revised every year that creates goals for emergency management statewide in the federal fiscal year” (Nicholson 2006, 397). Public Law 110-329 states that an EPMG program offers state and local grants for emergency planning, training, and exercising responsibilities. However, a local government unit’s failure to comply with PPA and CA will yield no federal money through EMPGs.

LEGAL DUTIES OF EMERGENCY MANAGEMENT DIRECTORS Duty to Plan Under Roberts v. United States (724 F.Supp. 778, 791 (D.DC. 1989)), an emergency manager may be liable for failure to prepare a mandated plan. Accordingly, all states have statutes that require an emergency operations plan (EOP) (Nicholson 2006, 411). As stated earlier, NFPA 1600, Sec. 5.3 (2004 ed.), sets a standard and the requirements that are considered a normal part of planning. Additionally, NFPA 1600 and NIMS require certain planning for emergency management programs that wish to receive funds, such as EMPGs (see www.fema.gov/preparedness/empg.shtm). For example, NIMS requires plans for mitigation, corrective action, and recovery. Of course, throughout the nation, wide variations in EOP language, coverage, and specificity make this an area worth a second look as emergency managers and local attorneys attempt to understand and troubleshoot their own backyard situation.

Liability for Failure to Follow the Plan Just as governments and emergency managers may be subject to liability for failure to plan, liability may also attach for failure to follow an established plan. In Berkovitz et al. v. United States (486 U.S. 531 (1988)), the Court established a two-part test to determine if governments may claim immunity for failure to follow an EOP. The first issue to resolve is whether the nature of the plan is

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optional or mandatory. If the plan is mandatory, the next issue to resolve is whether the emergency manager exercised the kind of judgment that discretionary immunity was designed to protect. That is, there is a basis to sue and no sovereign immunity attaches if the policy “leaves no room for implementing officials to exercise independent policy judgment” (Berkovitz at 547). This legal principle should be closely examined any time serious consideration is given to evacuation or shelter in place, or whenever the sacrifice of property for creation of a safer perimeter results in decisions that may appear discretionary.

WORKING TOGETHER: ATTORNEYS

EMERGENCY

MANAGERS

AND

It is a truism to think about planning and the extent of authority to exercise a plan before the chaos of a disaster strikes. Once disaster hits, emergency managers are making real-time decisions that affect lives and have no time to worry about what they perceive as a legal “niceties.” Further, government attorneys may often be seen as impediments although, had their advice informed the planning process, they could have streamlined the ways in which authority is implemented and plans, protocols, and procedures are executed. Therefore, the necessity of emergency managers and government attorneys working together in the planning process is patently obvious: [T]he time to ensure the adequacy of implementation of authority and its delegation, and the comprehension of such authority and its implementation by state and local government decision-makers, is prior to the onset of such an event (ABA 2006, 18). Taking a proactive rather than reactive approach, emergency managers and government attorneys will do well to ponder together the bounds of government authority and find answers to the following example questions that often arise in disaster planning. Even if emergency managers and their attorneys never come to a conclusion about these questions, the dialogue itself between these parties will be fruitful in reducing operational chaos. Mitigation and planning: What can zoning and insurance laws do to mitigate losses from hurricanes, earthquakes, and wildfires? How will land use decisions affect the risk of loss? How can environmental law and policy be shaped to mitigate the damages of natural disasters? Response during the event: What units of government should be responsible for responding during a disaster event? Federal? State? Local? Which unit of


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government should provide coordination among first responders? Who should be in charge and, perhaps, responsible for evacuating at-risk populations? Evacuations may be the most difficult aspects of emergency management because no alternative is completely attractive. Although the head of government usually has government authority to order an evacuation, sometimes people will refuse to evacuate. Failure to warn of an impending disaster or order an evacuation can also result in liability for the government’s failure to take the best protective step possible. Decisions about when to evacuate and over how broad an area are the kinds of decisions that, under Berkovitz, would be considered part of “discretionary function immunity” (Nicholson 2006, 419). Compensation: Should communities compensate individuals after a disaster when losses are inevitable with certain permitted land uses? Who should be liable for failure to order an evacuation or to respond in a timely manner? The local units? The state government? If insurance companies refuse to write policies in certain at-risk areas (such as South Florida after Hurricane Andrew), how can emergency managers prioritize responses to mitigate community-wide losses? Mitigation plans are actions taken that “reduce or eliminate risks to persons or property to lessen the actual or possible effects or consequences of an incident” (Nicholson 2006, 420). Emergency managers must incorporate lessons learned from an event into future community hazard mitigation practices. Although emergency managers have a legal obligation to mitigate risks after calamity strikes, they are also obligated to take the proper legal steps in the planning phase as part of the mitigation process.

AREAS OF CONTROVERSY At least three areas of controversy remain in the somewhat ambiguous domain of local emergency management legal terrain: the principle of due diligence, the issue of data protection and privacy safeguards, and the extent to which “tort liability” attaches to local officials who either do or do not engage in conduct that may inadvertently cause harm or destroy private property. These issues warrant a serious second look by local attorneys together with emergency managers to assess the extent to which they affect the conduct of emergency response and preparedness activities. Efforts to undertake hazard vulnerability assessments, engage in risk mitigation measures, and provide safety training and emergency guidance for employees, visitors, and the general public may apply to both government and commercial buildings. This issue may extend into security policies and crisis

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communication advisories for people who work inside or periodically inhabit buildings.

Due Diligence Due diligence concerns may extend to recovery plans and issues of who has the authority to declare an emergency; in so doing, they may set in place the trigger for a subsequent assessment of compliance and public safety. In some cases, the meaning of due diligence in this context is abundantly clear; in others, the ambiguity invites scrutiny. It can be said that due diligence is the level of judgment, care, prudence, determination, and activity that a person would reasonably be expected to have under particular circumstances. As applied to an emergency program, due diligence means that all reasonable precautions have been taken to address public safety risks, including during response to an emergency. Due diligence requires adherence to a legal standard of reasonableness. In essence, though grossly simplified, due diligence asks whether the government did all it reasonably could do to mitigate hazards, protect lives and property, and respond professionally to an emergency. Yet what is considered “reasonable” when communities vary in the degree of funding and human resources they have to mitigate hazards? Certainly, it can be argued these are domains of shared responsibility that are not easily dismissed or categorized. To exercise due diligence, an EOP needs to identify possible hazards and specify those responsible for carrying out the appropriate corrective action. In an emergency program, this includes training programs and exercises for employees and other persons who provide necessary services. Training tests the procedures to be followed in emergency response and recovery activities. Evidence of periodic training might overcome any later charges that emergency workers were unprepared or untrained for, or somehow deficient in, performing their tasks.

Personal and Sensitive Information Information controls for government files and for business continuity are generally not written into law. Limited legal and regulatory requirements exist in a small sample of selected industries, such as pharmaceuticals (21 CFR 11), hospitals and health care organizations (compliance with the Health Insurance Portability and Accountability Act), and certainly the banking and credit industry (compliance with the Federal Financial Institutions Examination Council). All these controls deal with information storage, retrieval, and protection, and the requirements for protecting data files from disaster and loss seem clear. However, private sector firms are subject to different standards than government agencies, so these differences should be understood.


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When the overall nature of emergency response is considered, the actions taken to protect people and property are often the domain of other laws, such as the Occupational Safety and Health Act (http://www.osha.gov). What matters most is the range of duties that the keeper and custodian of data must fulfill to show proper regard for privacy in all cases except where a prevailing public interest seems to call for more transparent disclosure. Old-fashioned notions that “the king can do no wrong” used to protect governments in the exercise of their discretionary powers but have diminished. Recent legal policies and court decisions have clarified the extent to which governments can be held liable for failure to act or act inappropriately in emergency situations. This notion of traditional sovereign immunity has changed to reflect the overarching principle of fairness. Simply stated, when government actively operates/manages buildings, public lands/structures, hospitals, airports, and vehicles, it should be subject to the same standards and duties of care that are required of a private citizen. This concept of fairness is limited, however. To avoid inaction, the government must be able to perform its essential functions, such as issuing ordinances, creating governmental policies, maintaining public order, and protecting national security, without fear of being sued. The key aspect of this principle is to better understand the heavily litigated “discretionary function exception.” Suffice it to say, questions involving failure to warn and protect citizens, and failure to enforce safety standards or emergency requirements that are rooted in statute or ordinance, can be open to challenge in court as arguable instances of tort liability. Since this article tries only to provide some of the key considerations that may attach to ordinary emergency operations, the goal is to have emergency managers and local government attorneys work in unison to detect, identify, and examine these issues with an eye toward understanding what possible problems could occur and developing effective strategies that allow the vast bulk of emergency services work and operations to proceed.

Mutual Aid Agreements Another area of some controversy is interjurisdictional collaborative support agreements in which one town agrees to augment another town’s response capabilities under the terms of a mutual aid agreement. Here, the real question is the extent to which all participating parties are protected. This question can be lumped together with other questions that trigger an automatic and easy answer but that may deserve closer scrutiny, such as • What are the powers of the governor to declare emergencies? • What are the legitimate domains of negligence risk for local government? • What rights and liabilities attach to mandatory evacuation orders?

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What duties does government have to provide standards for shelters? What liabilities may attach to an erroneous shelter-in-place advisory?

Certainly it is one thing to exhaustively review the tort liability, due diligence, and negligence areas with an eye toward examining risks and issues. It is another to determine the extent to which any government-led actions to prepare for, mitigate, respond to, or recover from a major disaster contain hidden or ambiguous areas of liability worth reviewing. This is not as simple as it seems.

CONCLUSION This article covers a small sample of issues to be examined by local governments and does not address the complete array of applicable laws and regulations that affect emergency management, nor does it clarify all the crucial distinctions of authority and accountability that may exist between state agencies and local government. Far from it; it has only touched superficially on some of the very basic legal considerations that emergency managers may find useful in the performance of their jobs. The array of legal issues that may intersect with normal emergency management functions and operations is an area requiring periodic reviews of EOPs and other related emergency guidance, as well as standby instructions, so that preliminary determinations can be made about possible legal aspects and ramifications. Never should questions of ambiguous legal liability thwart the effective and impressive work that America’s first responders do daily. Instead, we should commit to a regular review and discussion of these issues so that all in the field understand them clearly and key questions regarding emergency conduct, performance, errors, and other related matters are well known.

REFERENCES American Bar Association. Hurricane Katrina Task Force Subcommittee Report. Washington, D.C.: ABA Standing Committee on Law and National Security, February 2006. http://nationalstrategy.com.dnnmax.com/Portals/ 0/PDFs/SCOLNS%20Hurricane%20Katrina%20Report%20Feb%202006 %202.pdf. Farber, Daniel A., Jim Chen, Robert Verchick, and Lisa Sun. Disaster Law and Policy. 2nd ed. New York: Aspen Publishers, 2010. Hodge, James G., Jr., and Evan D. Anderson. “Principles and Practice of Legal Triage during Public Health Emergencies.” New York University Annual Survey of American Law 64, no. 2 (2008): 264. http://cstsp.aaas.org/ BiosecurityWorkshop2/NYS203.pdf.


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McGuire, Michael David. “Martial Law Made Easy.” Nighttalker.com, June 2 21, 2012. http://nighttalker.com/061221-martiallawmadeeasy.htm. Nicholson, William C., Esq. “Legal Issues in Emergency Management.” In The Fundamentals of Emergency Management, ed. Michael K. Lindell, Carla S. Prater, and Ronald W. Perry, 392–424. Emmitsburg, Md.: FEMA Emergency Management Hi-Ed Project, 2006. U.S. House of Representatives. A Failure of Initiative: Final Report of the Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina. Washington, D.C.: U.S. House of Representatives, February 15, 2006. http://www.c-span.org/pdf/katrinareport.pdf.

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