Hafsa Bashir Bhat

National Law School of India University Bangalore

Disaster Management System in Different Legal, Political and Social Systems

Abstract
This article makes an attempt to analyze the Emergency Management System of USA
and provide for alternative models in various other legal systems. This article is divided
into three parts and various subsections. Part I deals with the emergency management
system of USA. The researcher has tried to critically evaluate the response to various
disasters by the three levels of government; local state and center. The researcher has
dealt in detail the seven major disastes that have hit USA since 197; amongst them
are, Hurricane Agnes, Three Mile Island Incident, Hurricane Andrews, Hurricane Hugo,
Lemo Prieta Earthquake, September 11 Al Qaeda Attack and Hurricane Katrina. This
article traces the development of various emergency management legislations and
analyses them and also proposes further recommendations. In case of Hurricane
Katrina this article analyses the failure of the local, state and Federal government with
the help of Public Choice Theory. At various instances the researcher also analyses the
role played by private sector and International Nongovernmental Organisations in
responding to disasters. This article concludes with analyzing the human rights lag
during disasters. In doing this the researcher has addressed the core human rights of
individual in general like Right to Life, Liberty, Dignity, Non-Discrimination Movement,
Health, Housing, Shelter, Education etc. the researcher has very briefly made a
reference to the issue of protection of the human rights of people belonging to a specific
groups like Internally Displaced People, Women, Children, Minorities etc. Part II of the
project deals with a brief overview of Disaster Management System of Japan, Australia
and Canada. In the last part of the project the researcher has made an endeavor not to
draw a conclusion but to initiate a change that will lead to a better response to disaster
management and better protection of the victims of disaster.

Hafsa Bashir Bhat

National Law School of India University Bangalore

Introduction:
Disaster has always been defined quantitatively and the loss is evaluated as economic,
social and political. Procuring an unambiguous definition of disaster under various
legislations in USA is difficult since it has been defined differently in every legislation
concerning disaster management. However, by and large it consists of both manmade
as well as natural disasters which cause property damage, deaths and injuries to a
community1.
Natural and manmade disasters have frequently occurred in USA and the
development of the disaster management law can be traced back to the nineteenth
century. History of the disaster management laws and policies in USA is intertwined
with various disasters that have taken place in USA over various centuries2. Analyzing
the law without taking recourse to specific disaster will be a failure. There has been a
sea change in the disaster management law and policy of USA since nineteenth century
and a considerable shift took place form an ad-hoc event specific disaster relief to
maintain an all hazard approach of disaster management.
The legal developments of disaster management were simultaneously
accompanied by organizational changes with a lot of juggling in the organizational setup
of disaster management. All of these disasters where managed by different
organizations or the same organization with a changed power relation. The entire power
structure underwent drastic changes; in particular with respect to the presidential
powers viz a viz emergency management. Furthermore, in case of various
organizations; for instance FEMAs powers, which was once an independent
organization, where drastically curtailed after September 11 terrorist attack and the
same where given to the department of homeland security. In fact, the lack of
coordination and communication between the organizations involved in emergency
management is one of the reasons that USA has failed in disaster response. This
weakness has been witnessed in hurricane Agnes (1972), three mile island (1979),
hurricane Hugo (1989), hurricane Andrews (1992), September 11 (2001) and, Katrina
and Rita (2005)..
The humongous legislations at the federal level, state level and local level have
resulted into a huge conflict of interest and responsibility. Through these legislations
1

FEMA definition of disaster.

This is not true only for USA but stands equally true for every legal system. Law is an important means,
of course not the only means, to manage disasters. One could say that science and management plays
an important role in the pre disaster phase, but law is of utmost importance during all the phases
especially during the mitigation phase. There relation is mutual, in particular during the mitigation stage.
The response to any disaster is primarily determined by law, and this is the reason why under different
legal system the management of disasters is different. In fact if we examine the change in the emergency
management of USA we will see how law maneuvered the entire mechanism of emergency management
in USA. The entire behavior of the federal government, the state government and the local government is
controlled through law with respect to disaster management. The law during disaster plays an imminent
role in safeguarding life and property (Same as Hobbes and Locke said). The rights set out in laws and
policies with respect to life and property of citizens for example livelihood, insurance policies, disaster
loans etc. will determine the entire emergency management system (in a good way or in a bad way is
both subjective and objective). However, one can also argue that the law is manipulated by the political
will of the government (See Foot Note 6).

Hafsa Bashir Bhat

National Law School of India University Bangalore

various agencies involved in disaster response have been brought together without a
clear cut demarcation of the role to be played. These agencies have been clubbed
together without any change in their overall setup. Resultant is a hamper in response to
disaster management, disaster assistance and even categorization of the kind of
disaster. No distinction is made between blizzards that strikes Buffalo3 and hurricane of
the enormousness of Katrina4; both where declared as major disasters by President
Bush.
There are two instances which had a huge impact and changed the entire setup
of the emergency management of USA. One was during the World War II when USA
apprehended a nuclear attack form Soviet Union which led to the establishment of civil
defense program for disaster management and another was the September 11 attack
by Al Qaeda and the consequential setup of department of Homeland security
(hereinafter DHS). These two incidents shifted the focus from natural disasters to
Terrorist attack. After this hurricane Katrina revealed the inability of the USAs
emergency management, together with mitigation, response, relief and planning. The
result of which is various amendments in emergency management system of USA.
Emergency Management Law and Organizational Setup Pre - 1979: An Analysis of
Major Developments:
Initially the emergency management system of USA was ad hoc and the relief that was
provided was based on the event that would take place. At that time the disasters where
limited to fire and diseases. The local governments where the one involved in the
management of these disasters which was also minimal and assistance was often taken
from various social services, as giving relief was considered to be a charity5. The laws
therefore, were also unique to disasters.
The local governments progressively failed to provide required amount of relief in
many disasters and this fact finally became conclusive when an extensive fire broke out
in Portsmouth and Hampshire. The state resources during the management of this
disaster were overwhelmed and heavily taxed. The issue was brought in front of
congress, which brought a significant change in the emergency management system of
USA6; the first piece of national disaster legislation was enacted: Congressional Fire
Disaster Relief Legislation 1803. The obvious and an important consequence of this
was that the federal government became involved in emergency management for the
very first time. The federal government continued to provide assistance in the form of
funds and man power as and when a disaster would take place. Continuing the existing
policy of event specific response, the federal involvement was more of a response to

The October 26 Blizzard in Buffalo, New York, was declared a major disaster by president Bush
st
(Available At: http:www.fema.gov/news/events.fema?id=7225 Visited On: 1 August 2013)
4
Hurricane Katrina was declared a major disaster by President Bush (Available At:
st
http://www.fema.gov/news/newsrelese.fema?id=18478 Visited on : 1 August 2013)
5
Blanchard, Boyce Wayne. "Guide to emergency management and related terms, definitions, concepts,
acronyms, organizations, programs, guidance, executive orders & legislation." Past and Present:
FEMA (2008)..
6
Mener, Andrew S. "Disaster response in the united states of america: an analysis of the bureaucratic
and political history of a failing system." (2007).

Hafsa Bashir Bhat

National Law School of India University Bangalore

disasters7. To hit the nail one might say federal government played a passive role rather
than an active role8. This system continued for a while and majority of disasters were
handled by state and local governments
Two important developments took place during 1916-17. One is with respect to the
disaster response by civil defense and another is formalization of federal disaster relief.
In 1916 congress established Council of National Defense which consisted of
Secretaries of War, Navy, Agriculture, Commerce and Labour. This was the first attempt
to coordinate civil defense9 unit for emergency management. Even though the
legislation was passed, the concrete adoption of the same took place during 195010.
Second is the issue of War Department Regulation 67 which governed flood relief but
provided relief for all kinds of disasters, which again elaborates on the lack of a concrete
emergency management legislation and policy11.
Till 1940 the flood control policy showed constant development. Bureau of public
roads was given authority; army corps of engineers was also involved in building dams
and levees. Finally in 1940 President Roosevelt passed an executive order which lead
to the establishment of the Office for Emergency Management in the Executive Office
of the President. Also, during the World War II civil defense programs were
established in the Executive office of the President. Now both, the emergency
management and civil management came under the executive office of the president
(Emphasis Laid). One important thing to understand at this point is that the civil defense
and emergency management are dealt under the same department12.
After the World War II there were some tiffs here and there like explosion of first atomic
device by Soviet Union in 1949, invasion of North Korea into South in 1950, intervention
of the Peoples Republic of China later in 195013. All these incidents lead to the
enactment of The Federal Civil Defense Act of 1950. Under this act, though the
primary responsibility of civil defense was vested with the state and local government,
the federal government reserved the authority to participate in the form of providing
plans, programs, assistance, guidance, training, grants etc.
Finally in 195014 landmark legislation was passed, the Disaster Relief Act of
1950 (Herein after DRA).This legislation changed the entire approach of the
7

Hogue, Henry B., and Keith Bea. "Federal Emergency Management and Homeland Security
Organization: Historical Developments and Legislative Options." LIBRARY OF CONGRESS
WASHINGTON DC CONGRESSIONAL RESEARCH SERVICE, 2006.
8
There is, however, one exception to the above mentioned statement, flood control policies. The
approach with respect to food control has definitely changed over a period of time, but there has always
been one or the other federal policy with respect to flood control measures. (See M. Wright, THE
NATIONS RESPONSES TO FLOOD DISASTERS: A HISTORICAL ACCOUNT, A Report by the
Association of State Floodplain Managers (Available At: http://www.floodplain.org/files/hist_fpm.pdf
st
Visited On: 21 of July 2013)
9
Civil defense was defined at that time was as a system that protects civilian population and private and
public property against attack by an enemy.
10
Supra Note at 12
11
Ibid 16.
12
Harris, Mary U. Significant Events in United States Civil Defense History. Defense Civil Preparedness
Agency, 1975.
13
During this time President Truman proclaimed the existence of national emergency.
14
This year marked the beginning of the cold war, every decision taken with respect to disaster
management was motivated by some or the other ongoing political/economic circumstance. The potential
damage of devastating modern weapons in the UNS occasioned this organizational setup.

Hafsa Bashir Bhat

National Law School of India University Bangalore

emergency management. With passing of this act USA now had its first piece of general
disaster management legislation, which meant that the earlier ad hoc event based relief
available to individuals or locals and government was now replaced by all hazard
approach relief initiative. The basic philosophy was to supplement the state and local
government with federal resources. Hence the principle of cost sharing15 was
introduced and the economic impact of the disaster lessened16. Another important
feature of this act was that under this act the federal relief could be activated only when
president passed a declaration in this regard. There was a transition from negligible pre
1950 role played by the federal government to the current system17. In the initial years
of 1950, disaster relief was the responsibility of the Housing and Home Finance
Agency (HHFA) later on with the onset of cold war it was transferred from this agency
to Department of Defense. For 25 years disaster relief continued to be under this
department, however, the responsibility changed many hands within the department18.
By the end of 1953, most emergency management responsibilities where undertaken by
two organisations, Office of Disaster management under EOP and FCDA, an
independent agency19. According to James F. Miskel20 the major involvement in
disaster relief programs were Department of Housing and Urban Development and
Department of Defense throughout 70s. However, according to Platt the control
shifted from HHFA to FCDA to OCDM to OEP and finally to Housing and Urban
Development21.

15

Miskel, James F. Disaster response and homeland security: What works, what doesn't. Greenwood
Publishing Group, 2006..
16
The legislative history of the bill read, the purpose of the bill is to provide for an orderly and continuing
method of rendering assistance to the state and local government in alleviating suffering and damage
resulting from a major peace time disaster and in restoring public facilities and in supplementing whatever
aid the state or the local government can render themselves (See U.S. Code Cong. And Admin
Legislative History (1950) also see P.H.Rutherford, disaster and democracy: the politics of extreme
natural disasters, Washington DC, Island Press (1905)
17
Supra note 16.
18
Its important to take note of the fact how USA changed its emergency management at various
instances based on conceived threats of attacks or quite a few real instances. This has continued to be
the policy of USA with respect to disaster management. USA has focused more on terrorist attacks and
ignored the existing possibility of natural disasters which had already taken place over a hundred times.
This has been one of the worst policy that USA has adopted in its emergency management system and
the effects of the same where obvious in hurricane Katrina after the complete shift of focus from natural
disaster because of 9/11 attack on twin towers and pentagon. The question, however, is that had Soviet
Union attacked USA, was the system strong enough to handle the attack? The answer is of course
negative. Indeed one of the reasons is the limited resources, money constraints, and limited logistics
within the flawed system of emergency management of USA. Nevertheless, whatever little USA had, it
utilized it in disaster deterrence rather than disaster readiness. No the another hand if Soviet Union would
have attacked USA, the event would have been so catastrophic that even most prepared civil defense
system would be grossly inadequate. (Also See A.S. Mener, DISASTER RESPONSE IN THE UNITED
STATES OF AMERICA: AN ANALYSIS OF THE BUREAUCRATIC AND POLITICAL HISTORY OF A
FAILING SYSTEM, College Undergraduate Research Electronic Journal, (2007).)
19
Supra Note 14.
20
Professor of National Security Affairs at the Naval War college
21
See Miskel, Disaster Response And Homeland Security, 44 And Platt, Disaster And Democracy, 15.

Hafsa Bashir Bhat

National Law School of India University Bangalore

Easier Said Than Done: Hurricane Agnes and Three Mile Island:
Disaster response system in USA was adequate as far as small scale disasters where
considered. The local government and the state government responded well to these
disasters. At the local level the problem with respect to coordination and communication
does not arise. Since the disaster is small scale the resources are usually not
overwhelmed. The real test of the federal disaster response took place during Hurricane
Agnes that struck the east coast of USA killing 122 people and causing a huge
economic loss22.
In case of Hurricane Agnes, the state asked for federal assistance and in fact
the federal government declared Florida, Maryland, New York, Ohio, Pennsylvania,
Virginia, and West Virginia as disaster zones. In comparison with other states Ohio and
West Virginia did not ask for any assistance from the federal government but later on
claimed reimbursement which was very well provided by the federal government. The
remaining states, however, asked for federal assistance and that was when the failure
of the federal system became obvious. First of all, the entire local and the state
government where not well prepared to handle a disaster of this scale. USA was not
unaware of a disaster of this scale; it had responded to many disasters in the past and
had a choice to remain well prepared for disaster response. Second of all, when federal
assistance is activated all the levels of government respond to the disaster. The key to
make the disaster response a success is communication and co-ordination between all
levels of government, which is not a difficult thing to do in case of category 1 storm.
However, in case of Agnes there was an overall lack of coordination and communication
between all levels of the government and also with NGOs23. Among other things it was
discovered that relief to people who had lost their homes in the storm was inadequate,
there was a lag of information and the local government was unaware about the kind of
reimbursement it would get from federal government24.
Finally President Nixon realized that federal disaster response failed at all levels.
At this point USA realized that it had blown out of proportion the possibility of nuclear
attack and had neglected the much imminent danger of a natural disaster. Finally,
President Nixon said that the policies with respect to disaster management hence forth
will be made of Dual-use25. This meant that both peace time disasters and civil
defense disasters will be given equal attention. Hence, Disaster Relief Act of 1974
was passed by President Nixon.
Seven years later federal government got a chance to undo its previous failure.
The unfortunate event, Three Mile Island, took place. It was a nuclear mishap which
took place in Pennsylvania The result of this was widespread and sporadic. Thousands
of people were displaced, homes and public structures were damaged, and the federal
22

National Hurricane Centre, Hurricane Preparedness Site (Available At:

th
http://www.nhc.noaa.gov/outreach/history/#agnes Visited on : 04 - July-13)
23
Supra Note 16.
24
Ibid 31.
25
Blanchard, B. Wayne. American Civil Defense 1945-1984: The Evolution of Programs and Policies.
Volume 2, Number 2. No. FEMA-107. FEDERAL EMERGENCY MANAGEMENT AGENCY
WASHINGTON DC, 1985.

Hafsa Bashir Bhat

National Law School of India University Bangalore

response was similar to that of Hurricane Agnes. The analysis of this disaster should be
done at two levels, one disaster mitigation/preparedness, and two, disaster response.
Nuclear Regulatory Authority before setting up the plant should have exhaustively
planned for emergency in case of radiological release but in case of NRA, emergency
planning had a low priority. It did not consider important to have an evacuation plan in
case of an untoward event which a precondition for plant licensing. Also while
approving the sites for reactors the plan is to be approved only for LPZ which in case of
Three Mile Incident was a 2-mile radius. Whatever plans NRA had, they were called
ineffective by federal and state emergency preparedness officials26.
In case of radiation release, all the three levels of government are involved in
response and also the same was notified to the local, state and federal government
activating response at all the levels. Neither the local government within the radius of 5
mile had any evacuation plan nor did the country. The first responsibility was on the
shoulders of Pennsylvania Bureau of Radiation Protection. It was responsible for
developing an emergency plans which it failed to provide. The bureau, however, had
submitted a plan to federal nuclear regulatory commission in 1975 which was rejected.
Even though the plan was revised it was never submitted for re approval to federal
government. Even if the plan had been approved it was later on found that it would have
been inadequate to withstand a disaster of the kind of TMI27.
Another failure was lack of coordination, communication and urgency at all levels
of the government. NRC was unable to understand the seriousness of the accident for
about two days. The communication was so poor that the senior officers were unaware
of exact situation which failed them to develop an appropriate plan. The communication
between the on-site organisations and off site organisations had no reliable source of
communication28. In addition to this the information was not placed before the people
living in the surrounding community. It was a state of complete chaos. The state
government said that evacuation was not required as the radiations levels where very
low, however, the federal government recommended immediate evacuation of pregnant
women and children. The conflicting recommendations created more confusion29.
After hurricane Agnes President Nixon had established a Presidents
Commission to provide for recommendations for overcoming the failures of emergency
response and at that point of time the commission had recommended the establishment
of a consolidated federal agency for disaster preparedness and responsibility. With the
TMI incident President Carter followed the footsteps of Nixon and another committee
was established which recommended similar things. Finally after seven years the
recommendation was put to force and Federal Emergency Management Agency was
established in 1979, the beginning of a new era.
Federal Emergency Management Agency: The Stafford Act A New Era of
Disaster Disastrous Management:
26

J.G. kemeny, Report Of The Presidents Commission On The Accident At Three Mile Island, The Need
For Chance: The Legacy Of Tmi (Available At: http://www.threemileisland.org/downloads/188.pdf Visited
th
on 12 of August- 2013)
27
Supra Note 33.
28
Ibid 34
29
T.H. Moss, THREE Mile Island Nuclear Accident: Lessons And Implications, New York Academy of
Science (!981)

Hafsa Bashir Bhat

National Law School of India University Bangalore

Having become aware of its failures, President Carter passed various legislation and
executive order to put into effect the recommendation of the two committees established
later Hurricane Agnes and TMI, which lead to the establishment of FEMA and
Emergency Management Council. Various agencies involved in the mitigation and
response of disaster which were previously scattered where transferred to FEMA.
Among other departments this agency brought together following departments;
Department of defense, Housing and Urban Development, Department of Commerce,
National weather Service, Fire Service, Dam Safety, Earthquake.
The executive orders (EO) did consolidate various agencies under the same roof,
they also brought with them the earlier mistakes committed by the federal emergency
management system. The EO required all these agencies to coordinate with FEMA and
none of them were made subordinate to FEMA, thereby elevating the fragmentation,
compartmentalization, and miscommunication. The Emergency Management Council
was headed by FEMA Director and included all federal disaster preparedness
responsibilities. President Carter had a serious misconception, he assumed that this
would increase the bureaucratic stature of FEMA and will give it the required thump to
effectively coordinate disaster preparedness and response30. But on a close scrutiny of
EO 12124831, we find that the primary responsibility of FEMA was coordinating federal
efforts with those of local and state governments, actual emergency response were to
remain untouched32. Section 2-201 and 2-202 of EO 12148 stated
2-201: In executing the functions under this Order, the Director shall develop
policies which provide that all civil defense and civil emergency functions,
resources, and systems of Executive agencies are:
a) Founded on the use of existing organizations, resources, and systems to the
maximum extent practicable.
2-202: Assignments of civil emergency functions shall, whenever possible, be
based on extensions (under emergency conditions) of the regular missions of the
Executive agencies.
It quite evident from these sections that disaster preparedness is the primary take of
FEMA, response to the disaster remains an ancillary responsibility33. The true function
of FEMA was coordination and not response. As it was earlier pointed out that these EO
did not make the various agencies brought together subordinate to FEMA but where just
required to coordinate with them, had a serious implication with respect to resources
made available. These resources remained dispersed throughout the organisation
amongst various agencies. The resources from the federal government are released
after the state has made a request in this regard and federal government having
certified that the state and local governments resources are in fact overwhelmed.
At this point its important to remind ourselves that USA has a federal structure of
governance. Based on this fact the procedure for the activation of federal governments
response is to be done in the manner above mentioned. Also the EOs while
establishing FEMA made it clear that this organisation will supplant and coordinate but
30

th

Executive Order 12127, issued March 31, 1979. Executive Order 12148, issued July 20 , 1979.
Ibid 35.
32
This order brought together three agencies The Federal Preparedness Agency, The Defense Civil
Preparedness Agency, and The Federal Disaster Assistance Administration. Their responsibility was to
establish federal disaster policies and mobilize federal resources.
33
S.K. Schneider, Flirting With Disasters Public Management In Crisis Situation (1995)
31

Hafsa Bashir Bhat

National Law School of India University Bangalore

will not replace the local and state governments assistance. While evaluating the role
played by FEMA in various disasters, its important to understand that this organisation
is not a first responder its the local government which is the primary responder34. One
more important thing to comprehend is the entire procedure of the activation of federal
response and the role they play.
Figure 1
This is the procedure established under Stafford Act which was enacted in 1988.
And during the era of FEMA this was the principal legislation which governs the
federal response to disaster in USA. Another major legislation during this time was
the Emergency Assistance Act 1988.
The provisions of these acts are

implemented through National Response Plan and FEMA35. The system seems to
be excessively bureaucratic and the responsibility is distributed, its very much in
consonance with the federal structure of the government, so much so, if President
wants to respond to disasters, the same cannot be done unless and until a formal
request is received form the state.

34

W. Nicholson, Emergency Management And Law, Department of Criminal Justice North Carolina
University (2002).
35
M.L. Moss, C. Shelhamer, The Stafford Act: Priorities And Reforms, The Centre for Catastrophe
Preparedness and Response.

Hafsa Bashir Bhat

National Law School of India University Bangalore

Stafford Act: A Glance:

The Stafford Act spells out among other things how disasters are declared, the
types of assistance to be provided, and the cost sharing arrangements between federal,
state, and local governments. This act is inadequate and requires lot many
amendments.
First of all, the act provides for two types of incidents, Major Disasters and
Emergencies. Declaring a disaster under any one of two will determine the kind of
assistance they will get from the federal government to supplement them, cost sharing
arrangements etc.36. But the definition of disasters falls short of 21st century
requirements. Only natural disasters can qualify for catastrophes or if declared so by the
president based on the said procedure. So disasters like riots, civil disturbances,
biological, radiological or nuclear disasters cannot qualify to be a disaster under the
Stafford act. However, if need arises the power with president is available under other
legislations. So the definition of disaster under the Stafford act should be amended and
make it in consonance with the 21st century threats and requirements
Second of all, the caps on reimbursements should be removed. The assistance
provided is highly inadequate to overcome the harm brought by the major disasters or
emergencies.Third of all, the reimbursement under the act is only worth respect to
public or nonprofit utility providers. The modern utilities on which the success of the
disaster response depends is not covered under it neither are various essential utility
costs reimbursed such as water, electricity, communication system etc.
According to federal policy the business loss and assistance should be first covered
by the insurance companies as is provided under the Stafford act. The problem with
respect to this is that, following a catastrophe documents are more than often lost or
damaged, so it gets difficult to apply and get assistance from the government, so much
that the documents with the government are also damaged in many cases. Assistance
therefore, should be provided regardless of insurance coverage37.
Fourth of all the funding should be substantively increased to improve administration
of programs to meet needs of individuals and communities experiencing disasters and
host communities providing assistance38.Fifth of all, other assistances should be
provided which will further strengthen the local and state disaster management like
providing regular and overtime pay for all officials, expanding small business disaster
relief, adequate funding for preparedness and response activity, develop National
Emergency Transportation Evacuation Plan, recognize utility workers as first hand
responders, establish National Sheltering Plan etc.39
FEMA Disaster Management system or Disastrous Management System?:
Before September 11 attack by Al Qaeda on USA which changed the entire stature of
FEMA and also the emergency management system of USA, the federal relief system
36

42 U.S.C 5122
E.B. Bazan, robert t. Stafford disaster relief and emergency assistance act: legal requirements for
federal and state roles in declaration of an emergency or a major disaster, CRS Report for Congress
(2005)
38
C. Ray Nagin, Report Of The Stafford Act Reform Task Force, (2005)
39
Ibid 46
37

10

Hafsa Bashir Bhat

National Law School of India University Bangalore

as reorganized after Hurricane Agnes and TMI was put to test many times. Amongst
many the two incidents which revealed the imperfection of the system were Hurricane
Hugo and Hurricane Andrew. During the years preceding September 11 attack many
small scale disasters took place like Hurricane Alicia, Elena, Gloria etc. Being small
scale disaster they were handled well by local government and state government.
Nearly 20 disasters where declared by federal government and they were well handled.
However, these disasters where not large scale, when the system was tested against
large scale disaster like Hugo and Andrews, the age old short comings came sweeping
in and once again plagued the entire system. These problems where not new to the
federal response system; miscommunication, lack of information and coordination,
fragmentation, sluggish and slow response, lack of assistance and basic necessities
etc.40.
Hurricane Hugo, Loma Prieta Earthquake and Andrews: FEMA An Imperfect
System:
Hurricane Hugo and Andrews have given FEMA as an agency failing remarks. In
fact there was no improvement in the system after nearly a decade. The federal
response system had ten years to overcome its previous failure and the Carolinas had
over three decades in case of Hurricane Hugo. The storm was predicted by the National
Weather Service, which led to the pre deployment FEMA officials at the request of the
governor for federal assistance and president certifying it as a disaster. This was done
in case of both South Carolina and North Carolina41.
Until the declaration of Hugo as a disaster under Stafford act, everything took place
smoothly. The first flaw was exposed during the distribution of the disaster. FEMA was
unaware of the exact severity of the disaster because of which the relief fell short
immediately. Later on FEMA put the entire blame on the local and the state government
saying that they requested small amount of relief. The coordination was again a
problem and failing the federal relief yet again. Playing a blame game will not change
the fact that after four days of Hurricane Hugo, South Carolina was without electricity
and so was North Carolina. After five days, federal officials had not provided food and
water to the ruler poor, it took ten days for FEMA to open a disaster center42.
Senator Ernest Fritz of South Carolina was so disappointed with the work of FEMA
that he passed following remarks,The sorriest bunch of bureaucratic jackasses I've
ever known43The delay in the essential aid where because of two reasons. Firstly the
local and the state government failed to restore the means of communication. This
failed the response to disaster in two ways. The utility providers like private contractors
were unable to communicate with the local government and the state government and
the federal government response was also delayed. However, the local and the state
government cannot shred away from every responsibility. The local and the state
emergency management agency were less than ideal for a disaster of this scale. The
governor and the director of the emergency worked separately during the disaster and
40

J.K. Pierre, After Katrina : A Critical Look At Fema's Failure Toprovide Housing For Victims Of Natural
Disasters, Louisiana Law Review, (2008)
41
Miskel, Disaster Response And Homeland Security.
42
Ted Steinberg, Acts Of God: The Unnatural History Of Natural Disaster In America 185 (2000).
43
Patrick S. Roberts, Fema After Katrina, 137 Pol'y Rev. 15, 19 (2006).

11

Hafsa Bashir Bhat

National Law School of India University Bangalore

had no communication leading to replication of resources provided and over spending

on some and no assistance for many44.
In contrast to this we had Loma Prieta Earthquake in California. Even though this
earthquake also revealed similar failures on the part of FEMA, the response was a
success because of a well prepared emergency plan of the local and the state
government. FEMA in this case failed to provide adequate temporary housing,
discriminatory treatment of residential hotel tenants and seasonal workers, failure to
coordinate and urgent response45.
These two disasters which took place simultaneously made it clear that a country
like USA is ill equipped to handle two disasters simultaneously. In case of the
earthquake, the federal government was saved of much criticism because of the well
preparedness of the local and state government. Nevertheless, in 1991 report released
by the General Accounting Office noted that the federal government needs to works on
the preparedness of multi disasters, immediate response and recovery.
In case of Carolina unlike California which had a well-funded and well prepared
emergency plan, puts in front of us the importance of local and state governments role
in emergency management. Federal government alone cannot help in managing
disaster. The system works bottoms up and not up down. FEMAs role is to guide and
supplant the plan of local and state government. Its they who have to strengthen the
emergency management to make the entire system success. Entire burden cannot be
put on a secondary responder FEMA46.
FEMA was blatantly criticized during after hurricane Andrews struck Florida with
implausible force. At the request of the governor the country was immediately declared
a disaster zone and pre deployment of FEMA forces. FEMAs response was once again
characterized as pathetically sluggish and ill-planned47 and at other instance as brain
dead48. Even months after the disaster, tens of thousands were not provided
assistance for rebuilding homes and housing stalks by FEMA. The assistance was very
limited49. Much worse than this was that nobody at the local, state or federal
government understood the severity of the damage. At first the Floridas local
government claimed that it would be able itcope up with the disaster and by the time it
realized that state and federal assistance was required the wireless communication

44

4 Oral Testimony by John M. Ols, Jr. - Disaster Assistance: Federal, State, and Local Responses to
Natural Disasters Need Improvement, 15 May 1991 (GAO/T-RCED-91-39)
45
Petition To Federal Emergency Management Agency---An Impendingdisaster: FEMA's Neglect of LowIncome Earthquake Victims (Nov. 15, 1989), (Available At
http://www.pilpca.org/docs/Petit.Loma.Prieta.pdf Visited on 21 st August 2013)
46
A. Eugenie, Of Bay Area Govts, The Problem: Loma Prieta Andnorthridge Were A Wake-Up Call 2
(2003), (Available at: http://www.abag.ca.gov/bayarea/eqmaps/nightmare/problem2003.pdf Visited on
22nd August 2013)
47
David Tuller, fema fights mounting criticism: agency's slowreaction to storm budget for natural disasters
assailed, S.F. Chron (1992)
48
Ibid 55.
49
Petition to Admin. & Fema: Femas Bureaucratic Disasters: Unlawfully Mismanaging Disaster Relief
From Florida To California To Hawaii (1993), (Available At
http://www.pilpca.org/docs/Petition.FEMA.Mismanagement.Florida.CA.
th
Hawaii.pdf Visited on 18 August 2013)

12

Hafsa Bashir Bhat

National Law School of India University Bangalore

system had broken and it was unable to covey the same to state and federal
government50.
Basic necessities where not provided even after two days. Another criticism leveled
against FEMA was that it asked the victims to apply for SBA loans for acquiring
temporary housing. Of course the victims were denied the same because of their
inability to repay loans and the monstrous amount of paper work required left the
uneducated and elderly out of the benefits of assistance, if at all it was, ignoring its
policy of providing interim assistance51.
Several days later Congresswoman Barbara Mikulski (D-MD) in a letter to the
Comptroller General of the United States wrote:I am outraged by the federal
governments patheticallysluggish and ill-planned response to the devastating
disasterwrought by Hurricane AndrewTime and again thefederal government
has failed to respond quickly andeffectively to major disasters52.
The GOA in its 1993 report to congressional requesters gave certain
recommendation to the federal government. Among other things it said that the
complete system of federal disaster response plan should be amended during
catastrophic events. The assessment for the requirement of federal relief by state and
local government should be done away with and instead the federal government should
take the initiative on its own. After the assessment the federal government should
accordingly decide whether there is a need or not for federal assistance. The report also
said that preparatory and prior expenditures should be reimbursed by federal
government53; it also accused FEMA for not holding training session for state and local
government54. Other recommendations where establishing disaster response unit and
senior administrative office for president55. However, none of these recommendations
were implemented all that was done by President Clinton was appointed new FEMA
staff. No legislative reforms where brought but pre-disaster preparedness expenditure
was allocated. The entire structure remained more or less the same56.
September 11th and its Impact on Emergency Management System: What Went
Wrong?:
A lot has been said and written about September 11. Amongst other things its often
referred to as a major disaster of The United States of America and this is beyond
debate. The question is was it as catastrophic an event as other major disasters that
took place prior to 9/11? The answer is No. but there was a lot to learn and un learn
from this attack. It gave an insight in the entire emergency management at all the levels
of the government, yet again. The repercussions of the event on the emergency
50
51

Ibid 54
National Academy of Public Administration, Coping With Catastrophe: Building And Emergency
Management System In Natural And Manmade Disasters (Washington, DC: National Academy of Public
Administration, February 1993
53
Disaster Management: Improving the Nations Response to Catastrophic Disasters, July 23, 1993
(GAO/T-RCED-93-186).
54
Ibid 61
55
Ibid 62
56
Supra Note 16
52

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National Law School of India University Bangalore

management were enormous and in the pressure of do something the President

succumbed and passed The Homeland Security Act 2001.
Everybody had a lesson to learn from this attack. This attack provided another
chance to local, state and federal government to develop upon previous failures and
improve the emergency management system. The failure in this case where far less
than the disasters previously discussed. The reason being that it did not paralyze the
entire system; it did not overwhelm entire resources and problems like housing, food,
electricity etc. did not exist57.
The problems which came to the fore front where no different from other major
disasters like communication, coordination, inadequate training and bureaucratic
confusion. The first hand responders did not have updated communication equipments
required in a large scale emergency of this scale. The primary first responders were the
Fire Department of New York (FDNY), the New York Police Department (NYPD), the
Port Authority Police Department (PAPD), and the Mayors Office of Emergency
Management (OEM)58. The volume of communications, from police, fire, and EMS,
overwhelmed the system as well as the dispatchers. This was exacerbated by the fact
that many of the communications facilities in the immediate area of the WTC were
knocked out by the attacks59. Coordination between these departments was less,
confusion in chain of command structure, role delegation, and inadequate evacuation
procedures60.
At the federal level also there was a lack of coordination and there was no central
agency to overlook the role of state and local government. It was felt that there was a
lack of an overall national response plan to a large scale emergency. However, the
attacks of 9/11 showed the country that the fragmented homeland security structure
created gaps in communication and failed to facilitate information sharing. For example,
agencies that are responsible for collecting intelligence on terrorists, such as the
Federal Bureau of Investigation (FBI), did not share information with other agencies that
rely on such intelligence to carry out their duties61Criticism was also howled against
private sectors for lack of infrastructure including communication system.
The criticism was not only in with respect to the response of emergency
management but also with respect to the mitigation of a disaster like this and
preparedness. America was not completely unaware of a disaster like this, while it may
be impossible to give exact details of any disaster but one can at least predict a distant
possibility of the same. This is as truer in case of manmade diasters as it is in case of
terrorist attacks. New York in 1993 had witnessed a similar situation but on a much
smaller scale62.
57

Brian A. Jackson, D. J. Peterson, James T. Bartis, Tom LaTourette, Irene T. Brahmakulam, Ari Houser,
Jerry M. Sollinger, Protecting Emergency Responders: Lessons Learned From Terrorist Attacks
(California: RAND, 2002)
58
The 9/11 Commission Report: Final Report Of The National Commission On Terrorist Attacks Upon
The United States Authorized Edition, W.W. Nortan & Company, 281.
59
Ibid 66
60
Ibid 65
61
4 Michael K. Lindell, Carla Prater, Ronald W. Perry, Introduction To Emergency Management
(Massachusetts: John Wiley & Sons, Inc., 2007
62
7 Louise K. Comfort, Managing Intergovernmental Responses To Terrorism And Other Extreme
Events, Publius: The Journal of Federalism, Vol. 32 (Fall 2002)

14

Hafsa Bashir Bhat

National Law School of India University Bangalore

The lessons that USA learnt from September 11 attacks and the subsequent
changes that where brought where not required. Two most horrible decisions where
taken, one that there was a need to create a department of homeland security or DHS
and second which was even worse was the transfer of FEMA with DHS63. The question
that remains till date is that was there a need to create such a department. The
response system in case of September 11 was far more successful and far better than
any other major disaster. Infarct President Bush was against creation of any such
department but he was politically pressured to take the decision.
The earlier lesson of bureaucratic morass, lack of communication and coordination,
sluggish response were all forgotten and on their grave the foundation a department of
something as humongous as 18000 people was laid. These decisions have greatly
influenced FEMA, which was an independent organisation of a cabinet level stature was
now transferred to DHS. It lost its independent character and now we had a big chaos of
toomuch legislation, too many agencies and too many policies. Even if we agree with
the fact that there was a need for the creation of DHS, USA should have used it as an
opportunity to review its policies, to amend various legislation and establish a fool proof
dual system that would serve both natural and manmade disaster64.
None of the above things where attempted. FEMA was transferred to DHS without
any changes in the entire setup. Former FEMA Director James Lee Witt opposed
including FEMA in the new Department of Homeland Security because of his concern
that the federal all-hazards approach would be marginalized so as to emphasize
responding to and preventing terrorism65. Whatever little value we had of mitigation
under the Disaster Mitigation Act of 2000, was devalued after the creation of DHS.
Creation of department of DHS took place in a similar fashion as the creation of FEMA
in 1979, what was different was the fact that it failed much more miserably in its
response to Hurricane Katrina that struck USA three years later in 2005.
Emergency Management during Hurricane Katrina: Department of Homeland
Security Failure of Sense Making:
Hurricane Katrina which struck Florida coast brought with it another tale of dismay. USA
must have tried really hard to fail the entire emergency system in case of Hurricane
Katina. Not only was it anticipated weeks ago, it wouldnt be an exaggeration to say that
the National Weather Services had warned USA years ago that something as worse as
hurricane Katrina is anticipated. Giving USA benefit of insanity that it did not care two
hoots about the repeated warning about hurricane Katrina, however, one cannot
manage but become furious regarding the response of federal government in a major
disaster like Hurricane Katrina. Reflecting the homeland securities failure the United
States was judged all over as A Nation Unprepared66.
63

T.A. Birkland, Disaster, Catestroph And Policy Failure In Homeland Security Era, Review of Policy
Research, Vol. 26 (2009)
64
M. Moss, C. Schellhamer, D.A. Berman,THE STAFFORD ACT AND PRIORITIES FOR REFORMS,
Journal Of Homeland Security And Emergency Management, (2009)
65
Ibid 72
66
D.P. Moynihal, The Response To Hurricane Katrina, (Available At: http://irgc.org/wpth
content/uploads/2012/04/Hurricane_Katrina_full_case_study_web.pdf Visited on 27 August 2013)

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Hafsa Bashir Bhat

National Law School of India University Bangalore

Flirting With Hurricane Katrina:

To understand how badly the federal government failed to respond to hurricane Katrina
cannot be best understood unless we point out the fact that it was predicted weeks
before it became a category 5 hurricane storm and hit New Orleans killing 1800 people,
leaving thousands homeless and without basic necessities.
The response to this kind of a disaster had to come from every level of
government and every sector. Local, state, center, public, private and nonprofit each
had an important role to play67. The goals to be achieved where manifold, primary being
to reduce the sufferings and loss of life, for example evacuation; delivering materials
(food, water, ice and medicine); recovering bodies and providing mortuary services;
providing medical services; restoring public safety; restoring communications and
power; search and rescue; and providing temporary shelter68. All of these goals were to
be achieved by all levels of government in coordination.
Before getting down to the response in case of Katrina, one has to consider the
question of disaster preparedness by the local government. Hurricane Katrina was not a
surprise. A lot of warnings had come from all over. So the question is, was the local
government well prepared or not? To answer this question lets take one of the aspect
of preparation of the local government i.e. the levee system of New Orleans. The levee
system was damaged from before and it would not have been able to handle even a
category 3 hurricane if it had struck. Government had not invested to strengthen the
system in a decade preceding Katrina. In fact it was built to at least with stand a
category 3 hurricanes69. This is one of the many failures.
When it comes to investment in case of disaster preparedness or mitigation, the
shared political accountability creates a problem. Since the benefit from a political angel
to this investment if far sighted the government avoids to do the same which is quite
apparent in case of the damaged levee system. The shared responsibility in case of
evacuation process is another reason why the response of FEMA became sluggish.
Local and the state government was waiting for FEMA to help in evacuation, FEMA was
even unaware of even the presence of victims at various centers and in turn was
assuming that state and local government will do so. As a result of shared political
accountability various governmental bodies look to one another and engage in a blame
game that blurs the public perception of political accountability70.
Lets analyze the response to Hurricane Katrina based on Public choice theory71:
Politics in USA: American Virtues of Selfishness:
Public choice theory tells us about the basic nature of man similar to what Hobbes and
Locke referred as man in a state of nature. I think its implied that the researcher is
trying to draw an analogy between what they said about state of nature and what is
67

Supra Note 74
Ed 75
69
R.S. Sobel, P.T. Lesson, Governments Response To Hurricane Katrina: A Public Choice Analysis,
Springer (2006)
70
B. Deported, Horizontal Political Externalities: The Supply And Demand Of Disaster Management,
University of Miami School Of Law, 2006
71
This analysis is based on the following Article R.S. Sobel, P.T. Lesson, Governments Response To
Hurricane Katrina: A Public Choice Analysis, Springer (2006)
68

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National Law School of India University Bangalore

happening in USA. The only difference is that it gets much worse in case of USA; there
the state of nature is the state of government and law.
The response to Hurricane Katrina was motivated by the political interests of the
politicians, bureaucrats and the entire public sector. The private sector was very
effective in whatever little they were allowed to do even though the government refused
to take there n number of times and also took away whatever relief they had. The
preparation by the private sector started weeks before when the disaster was predicted.
The private donations by the INGOs and other private organisation were around $ 3.3
billion in response to hurricane Katrina72. The examples are many:
The American Refugee Committee led a relief team of experts in public health,
sexual violence prevention, mother-child health care etc.
Inter Church Medical Assistance provided emergency medicine, health care
support and psychological support.
International Medical Corps dispatched response teams to affected areas
immediately
International rescue Committee focused on public health, emergency education
etc.
UNICEF provided schools in a box kit kits, raised funds for American children
etc.73
But the government brought its chaos within the private sector also, the lack of
communication created a confusion about what resources were available, which where
the critical areas, in fact government stopped the red cross from carrying out its
evacuation mission saying that it will disrupt the evacuation process. Other private
organisation waited for weeks to get the permission from the government to carry its
relief work, somewhere burdened with the never ending procedural works. Many trucks
filled with water ice and emergency meals by the private organisation went waste
because of the lack of communication from the side of the government. Still companies
like Wal-Mart and Home Depot where availed to provide the basic necessities during
the first few days. In fact some of the victims of the hurricane said that Wal-Mart was the
only place where we could find water during first three days74. The failure of the local,
state and federal government was nothing new, but this time the human suffering was
immense and there was a lot of coverage and people where not diffused by packed at
one place like Superdome and Convention Centre75.
Tragedy of Commons76 Juxtaposed with Tragedy of Anti-Commons77:
Tragedy of commons takes place when too many individuals can take decision with
respect to something and tragedy of anti-commons takes place when to many people
72

Angela M. Eikenberry, Vernica Arroyave and Tracy Cooper, Administrative Failure And The
International Ngo Response To Hurricane Katrina, Public Administrative review, Vol. 67.
73
Ed 79
74
When The Levees Broke, Documentary by HBO (Available At:
st
http://www.youtube.com/watch?v=IqCQVVvNASE Visited on 1 September 2013)
75
Supra Note At 74
76
Term Used by Hardin in 1968
77
Term dubbed by Michael Heller in 1968

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National Law School of India University Bangalore

have power to exclude or veto the decision making. This stands true for the emergency
management system of USA. As pointed out earlier the system is so much bureaucratic
that instant decision making is hampered78. The long chain of commands backed by
personal incentives delayed the action further. Since a green signal is required at every
level its easy for the process to get stalled. The Louisiana Governor, Kathleen Blanco
said,No one, it seems, even those at the highest level, seems to be able to break
through the bureaucracy79
Contrary to this many agencies and departments did not wait for the permission
of FEMA and took actions without approval where successful in their response to the
disaster for example, U. S Coast guards began helicopter rescue without governmental
approval and they made a successful attempt in rescuing many. A Canadian search
team was helping the victims much prior to FEMA and they also made did a good job.
Sheriff Randle of Indiana however, waited for the prior approval of FEMA and they
never got over the paper work and were never able to reach New Orleans80. Everybody
in the beginning claimed that the problem with the creation of DHS was the transfer of
FEMA, but it seems that the only problem was that it added one more level of
bureaucracy81.
Over Cautiousness Type-two Error Problem:
FEMA is not going to hesitate at all in this storm. We are not going to sit back
and make this a bureaucratic process. Were gonna move fast, were gonna move
quick and were gonna do whatever it takes to help these disaster victims82.
Michael Brown Director FEMA
Too much talking by the Director did not change the sluggish response by FEMA. Type
two error is caused when authorities in power take too much caution in making decision
because of which results in a mistake. FEMA delayed its response because FEMAs
responsibility is secondary so the blame of acting slow would have been much lesser
than acting faster and causing other problems like death of FEMA workers etc. another
reason which delayed FEMAs response was the low credibility of local and state
authorities83.
During the earlier days of Hurricane, Governor and Mayor where unable to
determine the severity of the incident even though the NWS department had made it
clear that it will the worst disaster to strike USA. This was not something that was
hidden but was being floated all over media and press. This is very much apparent from
the fact that the mayor did not command mandatory evacuation till the last day before
Hurricane Katrina struck New Orleans. Secretary of the Department of Homeland
78

Refer to Figure 1
Quoted in: Agency France Press : Bush Takes Blame For The Governments Storm Failures As The
Death Toll Jumps, September 9, 2005
80
K. Parker, Three Heroes Outwitted Bureaucracy, New Hampshire Union Leader, 2005.
81
Supra Note 74
82
Stone Phillips, What Went Wrong In Hurricane Crisis, Interview Transcript, Dateline Nbc, September
9, 2005.
83
IBID 89
79

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Hafsa Bashir Bhat

National Law School of India University Bangalore

Security, Michael Chertoff, for example, did not declare Hurricane Katrina an incident of
national signicance until 36 hours after it made landfall. This occurred despite the fact
on August 27th two days before Katrinas arrival the National Hurricane Center
predicted Katrina would hit the Gulf Coast84
Also, there was no credibility in the information provided by the local and the
state government. Because of the late order for mandatory evacuation, the local
government was unable to vacate thousands of victims, so the mayor ordered opening
of Superdome and convention center. It was reported by the local government that the
condition is so bad in superdome that thousands are dying and there is a complete
breakdown of law and order. Later on it was confirmed that only eight people have died
out of which four died of natural death, one committed suicide and the other three died
in a fight85. In one of his interviews, President Bush said that he had called the governor
to provide federal assistance to which she completely rejected. The case of the levee
breakthrough in New Orleans the day the hurricane hit. Although government agencies
were aware the levee system had broken by 6:00 p.m. Monday, ofcials waited until the
next day, at which point the city had been ooding for nearly 24 hours, beforesounding
the alarm86. In this way the local and the state government also contributed in the delay
of FEMAs response87.
Disaster Declaration or Creation A Road to White House:
There exists nothing like government gave preference to public interest over its own.
Logically if we see, both should have been one and the same but alas! If we take a look
at the disaster declarations by the president over last 10-20 years, weather events
which most of the people would not consider disaster here declared major disaster and
disasters which qualified to be so went undeclared.
In 2003, Garrett and Sobel investigated the politics of both the disaster declaration
process and the subsequent allocation of disaster relief monies across states.
Examining all disasters from 1991 to 1999, their study nds that states politically
important to the president in his re-election bid have a signicantlyhigher rate of disaster
declaration by the president88. All these disasters where declared in major combat
grounds for election89.
1996, when Bill Clinton wasup for re-election, he set a record by declaring the
largest number of major disasters in history, 75.
Unsurprisingly, the second highest year for disastersin history was 2004, George
W. Bushs re-election year, when he declared68.
Ignorantia Facit Doth Excusat Rephrased by America: Excuse Us; We Ignore
Facts:

84

Jonathan Landay, Alison Young and Shannon McCaffrey, Chertoff Delayed Federal Response, Memo
Shows, Knight Ridder Newspapers, September 13, 2005.
85
Katrina Debacle Unfolded, Documentary by National Geography.
86
. Larry Eichel, What Went Wrong, Knight Ridder Special Report, September 11, 2005.
87
Supra Note 74
88
Supra Note at 74
89
Ibid 94

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Hafsa Bashir Bhat

National Law School of India University Bangalore

National Hurricane Centre predicted Hurricane Katrina way back and the same was
brought into the notice of Michael Chertoff, ignoring the warning he did not declare
Katrina an incident of national significance until it made a landfall. FEMA director,
Michael Browns was unaware of various major developments relate to relief, he was
unaware that the victims had been moved to Convention Centre after the roof of
superdome was destroyed by Hurricane Katrina90. New York Times journalist David
Brooks put it,Katrina was the most anticipated natural disaster in American
history, andstill government managed to fail at every level91.
FEMA did not provide or could not provide relief supplies for two reasons. First
they did not know what was required and were. The communication system had broken
down, earlier communication by the local and state government was gross
exaggerations. Second, since the relief was provided for free, and federal government
was aware of the corruption and the law and order had gone into abyss, so people who
did not require relief looted as much as they could and victims who did not have even
the bare minimum lifesaving essentials were left out of the relief supplies. On the other
hand Wal-Mart was at least able to provide basic necessities like water.
Not only did FEMA refuse to perform its own relief function, it also stopped the private
agencies to carry their functions smoothly. FEMA refused to ship trailers, generators; it
also stopped NCG todeliver fuel, American Bus Association repeatedly pleaded to help
evacuate victims from superdome and convention Centre but FEMA paid a deaf ear to
them92.
FEMAs way of looking good was to pull down others who were doing good job
and same was followed by local government of New Orlena. It did not allow Red Cross
to do the distribution of essential reliefs even though the begged for the same. It
confiscated many of its supplies and prevented the delivery.
Human Rights Gap in Emergency Management: A Brief Overview:
During emergency, human rights are most vulnerable. The humanitarian work during
disasters and emergency has to be in consonance with the principles of human rights
otherwise the result will be more suffering and injustice. Therefore, the emergency
response has to answer the requirements created in the human rights regime at the
national as well as international level.
During the time of emergency the human rights get divided into two categories;
Derogable rights and Non-derogable rights. There are certain human rights upon which
restrictions can be imposed or can be completely done away with but the non derogable
rights even during the time of emergency cannot be restricted93.Beyond this we also
have protection for various groups of people the legal obligation for who arise from
various international conventions and additional protocols to them, if any.
During the time of emergency the government has to protect the life of the
people94, their dignity95, security96, health and moral integrity. But in case of emergency
90
91
93

Supra Note 92
David Brooks, The Best-Laid Plan: Too Bad It Flopped, New York Times, September 11, 2005.

Article 4 ICCPR.
Article 3 UDHR, Article 6 ICCPR, Common Article 3 Geneva Convention
95
Article 5 UDHR, Article 7 ICCPR
94

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Hafsa Bashir Bhat

National Law School of India University Bangalore

management of USA these human rights where blatantly violated. People died in
thousands because of the failure or delay of response.in almost every disaster response
evacuations and other measure failed, gang rapes took place, prostitution, child Labour,
slavery etc. were a common phenomenon. Another important principle of nondiscrimination was also violated. In fact it was said in case of hurricane Katrina that poor
African-Americans where marginalized and the historical, structural and institutional
racism was a common line through all disasters97.
There was no protection of rights related to basic necessities. The access to
goods and services was not only impossible but in many case it was not provided for
many days like in case of hurricane Katrina. There was no food available, no water
shelter or housing for many days. Health services where absent and wherever private
agencies tried to offer such assistance the government made sue that they stopped
them. Violation of economic social and cultural rights like education, property, livelihood
and work continued time and again.
During disasters protection is to be provided of specific groups of people like
internally displaced persons, women, children, older persons, persons with disabilities,
ethnic and religious minority groups and indigenous people98.
With respect to human rights I would in particular like to point out the human
rights violation after September 11 Al Qaeda attack. USA after this attack detained
many people based on mere suspicion and since then USA has been infringing the right
to life and privacy of people. Establishment of the Guantanamo and Abu Ghuraib
detention centers are the places where humans are being treated worse than animals.
Millions of dollars are being spent by USA to check everything that a person does online
and offline every year, dropping dead the so called privacy rights enshrined in the
constitution of USA.
Japan An Alternative Model:
If we look at the disaster management system of japan, it has a lot of merits over that of
USA. The Central Disaster Management Council99 is the body which formulates the
overall policy and also coordinates the disaster management response nationwide.
There are many things which make this a much better body that FEMA or DHS, first of
its headed by the Prime Minister himself. So whatever policies and steps are taken, its
decided under his authority. This means a definite though shared political accountability.
Another positive point of this council is that it has members representing every state.
Roles and responsibilities are clearly defined and all the three levels of government are
involved in making plans for the nation as well as for the states (prefectural) and the
municipal level. Also, Japan has included The Japanese Red Cross society in its council
which definitely gives an edge to its disaster response. Various first hand responders

96

Art. 5 UDHR in conjunction with Article 1 UDHR; Article 7 in conjunction with Article 2, Para. 1 CCPR,
Human Rights Committee, General Comment No. 31, Para. 8.
97
An interview with Dr. Kimberley Richards, Peoples institute for survival and beyond, 10 February 2010
98
Human Rights And Natural Disasters Operational Guidelines and Field Manual on Human Rights
Protection in Situations of Natural Disaster, Brookings-Bern Project on Internal Displacement.
99
Based on the provisions of Disaster Countermeasures Basic Act - 1951

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National Law School of India University Bangalore

are also included in the cabinet such as tele

tele-communication
communication agency and fire
100
department .
With this Japan was able to cope up with various earthq
earthquakes
uakes and tsunamis. But
in 1991 Hanshin Awaji Earthquake made obvious certain inherent defect and a revision
of 1961 Act was done. The act focused more on mitigation and countermeasures101.
This lead to the enactment of a new legislation named Disaster Count
Countermeasures
ermeasures Basic
Act 1995.
Under this act the council retained it function. The basic DRM plan clarifies that
every level of government has to make a disaster response plan for its own area and
the sequence of the plan should be as per the act. Following is the sequence:

Preparation
Emergency
Response
Recovery

Reconstruction

USA during most of the disaster ignored the warnings by the technical agencies. In case
of hurricane Katrina, the NWS department kept on calling the local, state and federal
government and informing them about the storm but they repeate
repeatedly
dly ignored these
warnings. Japan on the other hand establishes technical committees to study technical
matters. There are various reports made by these expert committees on various
disasters like earthquake and tsunami. And it was based on these reports that
t
amendments where introduced in Basic Disaster Management Plan in 2011.
The strength of the japans DRM system is evident from the fact that it has a clear cut
plan for the sharing of communication within the system. Sharing of information is the
basic strength of every disaster management system. Japan utilizes the help of
geographical information system that helps the intra governmental communication and
also inters communication between government and private sector102. Also japan has
introduced market techniques to counter disaster for example earthquake-resistant
earthquake
residences, household goods with disaster functionality etc., earthquake proofing
buildings, schools and other key infrastructures103.
100

M. Ikeda, Disaster Management Plans

Plans, Asian Reduction Centre (2006).
Ed 108
102
K. Shuhei, Disaster Management Of Japan
Japan, Government of Japan.
103
Supra Note at 110
101

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Hafsa Bashir Bhat

National Law School of India University Bangalore

Outline of Japans Disaster Management System104:

National Level
1) Centeral Disaster
Management Council
2) Designated
Government
Organisations
Designated Public
Corporations

Formulation,
implementation
and promotion of
basic disaster
management plan

Prefecural Level
1) Governor
2) Designated Local
Government
Organizations
3)Designated Local
Public Corporations

Formulation,
implementation and
promotion of the local
disaster management
plan

Municipal Level
1)Mayors of Cities,
towns and villages
2) Municipal
Disaster
Management
council

Resident Level
1) Designated
Government
organisations: 23
Ministries and
agencies
2) 63 Independent
admin. agencies,
bank, Red Crosss,
NHK, electric and
gas companies

Formulation,
implementation and
promotion of the
local disaster
management plan

Disaster Management in Australia and Canada

Canada:
These two countries also have a federal structure of government; however, they have a
different emergency management system from that of USA which serves them quite
well. In these countries also the primary responsibility of disaster response is on the
local government and state government. The federal government will step in only after
these two are have a previously set predetermined level, but what makes it different is
that no formal declaration of disast
disaster
er is required cutting down on bureaucratic and
politicalmal functioning. The reimbursement which every state will get will depend on its
fiscal strength105.

104
105

Source COA
Supra Note 74

23

Hafsa Bashir Bhat

National Law School of India University Bangalore

The equivalents of FEMA in both the countries106 become automatically involved.

Since there is no shared political accountability so there is no chance for escaping
through blame games. The real test for the countries disaster management system is
pending because both the countries have not faced any major disaster as yet. So it gets
difficult to ascertain the overall effectiveness of the system.
The Beginning:
Mr. Henderson107 Said,
When an abhorrent of a systematic faith is brought continuously in touch with
the influences and exposed to desires inconsistent with that faith, a process of
unconscious celebration may take place, by which growing store of hostile
mental inclinations may accumulate, strongly motivating action and decision, but
seldom emerging clearly into consciousness. In the meantime the formulas of old
faith are retained and repeated by force of habit, until one day the realization
comes that conduct and sympathies and fundamental desires have become so
inconsistent with the logical frame work that it must be discarded. Then begins
the task of building up and rationalizing a new faith.
Its humbly submitted that after writing this article the researcher has realized that
its not the time to conclude but the time to begin. In case of USA one cannot but clinch
on the repeated failures of the Emergency Management System. One may find it
difficult to comprehend why a country like USA would fail in its disaster response. The
answer is very easy to understand if we acclimatize ourselves with corrupt, unethical
and demeaning, political, economic and social ideology of USA. Not only has USA failed
in the disaster management in its own country but its the worlds biggest disaster
creator. To supplement this observation taking names of countries like Iraq,
Afghanistan, Somalia, Yemen etc. would serve the purpose. America in order to
respond to the emergency of September 11 declared a global war on terror which
resulted in utmost dis respect of human rights in the constitution of USA and
international conventions and declaration to which America is a party.
The problems with the Emergency management of USA are many and these
problems where never ever done away with. Even though we saw above that the entire
emergency management system of USA was reorganized several times but the
problems that where revealed at the time of Hurricane Agnes and Three Mile Island
were carried along throughout these amendments and finally dumped in the Department
of Homeland Security.
Every disaster in USA has a similar melancholic tale to disclose. The failure is
not found at one level of the government but at every level. Three Mile Island and
Hurricane Katrina revealed the lack of preparedness with respect to local and state
106

Canadian equivalent of FEMA, the Emergency Management and National Security Branch of Public
Safety and Emergency Preparedness Canada (PSEPC) and the Australian equivalent of FEMA,
Emergency Management Australia
107
Powell, Foreign Corporation in American Constitutional Law, p.164 (Source: The Nature of Judicial
Process by
Benjamin N. Cardozo, LLD, Yale University Press.)

24

Hafsa Bashir Bhat

National Law School of India University Bangalore

government. Almost every disaster revealed the shortcomings of the federal

government. The problems have been same throughout centuries, Lack of
communication, coordination, with holding of information, extreme Bureaucracy, over
cautiousness, lack of incentives etc.
USA while amending its system never brought major amendments to the basic
legislation of the Disaster Management at the federal level. Stafford Act for example is
outdated with respect to the disasters of 21st century. In fact every time the response
system failed, USA brought about organizational changes the worst example of which
was transferring FEMA in the DHS. Not only did it create more levels of bureaucracy
and procedural work but the focus of USA emergency response system became
indifferent towards natural disasters and America became obsessed with countering
terrorism. USA failed at this even more severely. Today USA is notoriously known for
human rights violations, violating right to life, tortures in detention centers, obsessively
spying on its own citizens etc.
The emergency management system of Japan is practically much better because
there is no shared political accountability and the role of every level of government is
clearly defined. Help from technical committees and experts is taken and based on their
reports the response plan is amended. USA on the other hand chooses to ignore such
assistance as was the case during hurricane Katrina. The government of USA was
made aware of such a storm years before but still the government managed to fail.
Decentralization, role defining, automatic federal response similar to what takes place in
Australia and Canada are some of the solutions that USA can take up to make its
emergency system much more effective. USA lack policies and plans on disaster
mitigation and preparedness. Investment in the pre disaster phase is very less because
of less political incentives attached with it. This was evident from the breaking down of
levee system in New Orleans during Hurricane Katrina. USA should make mitigation the
focus of emergency management. Natural disasters should not be sidelined; they are
more imminent that the terrorist attacks. So all-hazard disaster system should be
adopted.
In the end I would like to conclude by quoting one of the Emails of former FEMA
director, Michael Brown, Please roll up the sleeves of your shirt; all shirts. On TV
you just need to look more hard-working108. I think USA should literally put into
practice the real essence of this phrase and ROLL UP THE SLEEVES!

108

Quoted in: Can I Quit Now? FEMA Chief Wrote as Katrina Raged, CNN.com, November 4, 2005

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