The Legal Landscape for Emergency Management in the United States

With enactment of the Stafford Act in 1974 and the creation of the Federal Emergency Management Agency in 1979, the federal government developed an apparatus to plan for and respond to natural disasters. Over time, the expansive language of the Stafford Act (“any natural catastrophe … or, regardless of cause, any fire, flood, or explosion”) enabled presidents to rely on Stafford Act authority to respond to acts of terrorism in addition to disasters.  While recent attempts have been made to consolidate and streamline the federal entities responsible for emergency management, the overarching characteristic of the U.S. system at present is inadequate integration and coordination of the wide range of civilian and military, governmental, private sector, and nongovernmental organization participants in preparedness and response.  While the Department of Homeland Security has been fashioned to manage these responsibilities with a mission to break down “stovepipes” and create “a greater emphasis on and need for joint actions and efforts across previously discrete elements of government and society,” obstacles continue to stand in the way of reforms. Among them: 

• Our federal system distributes authority and assigns responsibilities for domestic preparedness and response only ambiguously.
• Research in natural disasters teaches that actual emergency response is more nearly chaotic than hierarchical. Actors improvise to provide the needed goods and services.
• Our communities are becoming increasingly interconnected in urban areas that rely on vulnerable modes of transportation, communication, and provision of public utilities. The lack of resilience of our infrastructure leads to similar grave consequences from natural disasters and terrorist attacks.
• The federal government has provided confusing mandates and poor planning direction for state and local governments. Federal funding priorities exacerbate distortions in local planning, where disproportionate attention is paid to less likely terrorist incidents instead of more likely natural disasters.
• Legal authorities stop short of providing clear prescriptive responsibility over many of the implementation issues. Federal, state, and local law enforcement and intelligence entities have at times threatened civil liberties in implementing unclear or open-ended policy or legal objectives.
• Coordination plans for emergency response are mostly untested, and there are few coordination requirements and virtually no assigned leadership to manage the coordination.

This paper examines the federal organization of emergency management, the federal-state-local interface and its mechanisms, the law enforcement and intelligence overlap, and finally the military roles in emergency management.

To read the full paper, click here.

William C. Banks is the founding Director of the Institute for National Security and Counterterrorism at Syracuse University, and a leading expert in national security law.