Mitigating the Discretion Disaster: How Changes in the Law Can Help FEMA Effectuate Its Critical Mission

by Paul G. Rando

Associate Member, University of Cincinnati Law Review Vol. 90

Editor-in-Chief, University of Cincinnati Law Review Vol. 91

Editor’s Note: This article was originally published in Volume 90, Issue 4 of the University of Cincinnati Law Review. Click here to read the article in full.

I. Introduction

On August 29, 2021, Hurricane Ida made landfall in Louisiana as a Category Four hurricane with wind speeds of 150 mph.1Tim Craig et al., Hurricane Ida Barrels into Louisiana, Causing Catastrophic Damage with Wind, Rain and Storm Surge, Wash. Post (Aug. 29, 2021), https://www.washingtonpost.com/national/hurricane-ida-brings-widespread-damange-to-southeast-louisiana/2021/08/29/72fa792c-08dd-11ec-a6dd-296ba7fb2dce_story.html [https://perma.cc/BX9Z-GWC5]. Ida knocked out the power to the entire city of New Orleans, including hospitals and sewer systems.2Id. From New Orleans, the storm raged northeast, ultimately causing major flooding, death, and billions of dollars in property damage in east coast states including New Jersey and New York.3Thomas Frank, Deaths from Hurricane Ida Expose Flaws in FEMA Flood Maps, Sci. Am.
(Oct. 6, 2021), https://www.scientificamerican.com/article/deaths-from-hurricane-ida-expose-flaws-in-fema-flood-maps/ [https://perma.cc/AVA9-FPCT]. See also Rebecca Baird-Remba, Hurricane Ida
Caused $16B to $24B in Damage in the Northeast, Report Finds, Com. Observer (Sept. 10, 2021)
(estimating that Hurricane Ida caused between sixteen and twenty-four billion dollars worth of property damage in the northeast United States), https://commercialobserver.com/2021/09/hurricane-ida-caused-16b-to-24b-in-damage-in-the-northeast-report-finds/ [https://perma.cc/9EBC-Z9RE].

Survivors whose homes get damaged or destroyed in disasters such as Ida seek help from the federal government through the Federal Emergency Management Agency (“FEMA”).4See e.g., John K. Pierre & Gail S. Stephenson, After Katrina: A Critical Look at FEMA’s Failure to Provide Housing for Victims of Natural Disasters, 68 La. L. Rev. 443, 444 (2008). FEMA, empowered by the Stafford Act,5Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121-5208 (2021). helps survivors pay rent and provides other post-disaster housing assistance.6Pierre & Stephenson, supra note 4, at 444. However, in its four-decade history, FEMA has erroneously denied thousands of eligible applicants post-disaster housing assistance.7Damian Williams, Sheltering Deprivations: FEMA, Section 408 Housing, and Procedural Redesign, 116 Yale L.J. 1883 (2007). Advancing the right to housing is difficult enough in nondisaster circumstances; doing so in the aftermath of a catastrophe is much harder.8Charles W. Gould, The Right to Housing Recovery After Natural Disasters, 22 Harv. Hum. Rts. J. 169, 181 (2009) (detailing the “daunting” task of housing the world’s poor prior to a disaster, and arguing that a nation’s response to additional housing burdens post-disaster is a measure of that nation’s commitment to housing rights). The post-disaster needs of entire communities, all being urgently addressed in tandem by the immense machinery of both government agencies and non-governmental organizations, dwarf the rights of individuals, such that the needs of survivors get overlooked or left behind in error.9Id.

This Comment examines the Stafford Act’s housing provisions to show that FEMA repeatedly and erroneously denies survivors their housing benefits primarily due to a critical defect in the Act: the section on housing assistance is written in discretionary rather than mandatory terms. Due to this shortcoming, legislatures and judges are unable to protect survivors from FEMA’s mistaken denials of assistance. When the destructive impact of natural disasters is exacerbated by failures of manmade systems such as FEMA, those systems should be recalibrated.

This Comment demonstrates the need for more robust federal natural disaster relief systems. Section II of this Comment will explain the science of natural disasters, the Stafford Act’s specific housing provisions, and how federal courts have addressed FEMA denials in the past. Section III argues that the phenomenon of erroneous denials can be put to rest either by Congressional amendment of the Stafford Act, or by the common law establishment of a due process right to receipt of FEMA assistance. While either remedy would suffice, the ideal solution is to implement both. 

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Cover Photo by Chandler Cruttenden on Unsplash

Author

  • Paul's previous leadership roles include directing volunteer programs in international natural disaster recovery, (including managing a base of operations in Toa Baja, Puerto Rico, one in North Carolina, and leading teams to reconstruct 50 homes, 52 toilets, and 2 schools in Nepal), and leading a trail crew for a six month stint in the Vermont backcountry. Every leadership role is a humbling opportunity, and being chosen as the Editor-in-Chief for Volume 91 has been no exception. Paul's writing for the Law Review has focused on issues of the law of natural disaster recovery and the January 6 Capitol insurrection. After law school, he intends to work in natural disaster legal services, and aspires to open a disaster legal services clinic, to teach a course in Disaster Law, and to get his LLM degree. He currently works at Cummins Law.

References

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