Disasters, Law and Reality
De jure and De facto -- Latin legal terms meaning, how it is officially supposed to work (de jure); and how it really works (de facto)
Predicted pathway of Hurricane Helene the day before the storm.
Hurricane Helene made the Swannanoa River in Western North Carolina rise to 26.6 feet above normal levels, following a rapid rise of 19 feet in just roughly 20 hours. The Swannanoa River has not reached this level since 1791.1
Hurricane Helene made landfall in Florida, Thursday night, a Category 4 hurricane with maximum sustained winds at 140 miles per hour.2
The White House declared western North Carolina a disaster area, triggering the Stafford Act process and federal assistance — theoretically.3
The Stafford Act is the primary legislative funding mechanism for federal support and responses to natural disasters. FEMA is the lead federal agency designated for coordinating federal agencies and collaborating with state, and local governments. The responses by the federal government in the aftermath of Hurricane Helene in Western North Carolina have highlighted shortcomings in the federal response system.
Hurricane Helene also visited Florida, Georgia, Alabama, South Carolina, Tennessee, Kentucky; but Western North Carolina seems to have taken the brunt of this storm. Eastern Tennessee has the Tennessee Valley Authority, whose main mission is to prevent flooding,4 but it involved a federal government flooding project that came with preplanned flooding disasters to entire communities and historic and traditional Cherokee Nation lands.
I am from Western North Carolina and seeing this epic disaster with the first steps of the federal response looking like a disaster, a review of the law seemed in order.
Hurricane Katrina in the Gulf was marred with a slow response, excessive bureaucratic delays and squandered funds. According to Cato Institute:
FEMA also wasted huge amounts of supplies. It delivered millions of pounds of ice to holding centers in cities far away from the Gulf Coast. FEMA sent truckers carrying ice on wild goose chases across the country. Two years after the storm, the agency ended up throwing out $100 million of unused ice. FEMA also paid for 25,000 mobile homes costing $900 million, but they went virtually unused because of FEMA’s own regulations that such homes cannot be used on flood plains, which is where most Katrina victims lived.
The Stafford Act: Structure and Purpose
The Stafford Disaster Relief and Emergency Assistance Act (1988) provides the legal framework for federal disaster response activities.5 It provides the President with authority for declaring disasters and provides a funding mechanism for federal assistance through the Federal Emergency Management Agency (FEMA). Generally, the federal government provides 75% and the state and local governments provide the remaining 25% of the costs of recovery.
The Disaster Declaration Process
One of the most crucial aspects of the Stafford Act is the process of declaring a disaster, which allows the use of federal resources. The process is initiated by state governments, which must first assess the scope of the disaster and determine whether it exceeds local capacity. If local and state governments conclude that their resources are insufficient, they request federal assistance. The request is then reviewed by FEMA and other federal agencies before being passed to the President for approval. Constitutional federalism requires that the governors ask the federal government for assistance, and so the government will then be invited to assist. Otherwise, the federal government would be infringing on state sovereignty. The Katrina delays were caused in part because the governor and mayor of Louisiana refused to ask the federal government for assistance due to political differences, unfortunately.6
In that announcement, Pres. Biden appointed Thomas J. McCool7 as the “Federal Coordinating Officer” (FCO) one of the requirements of the Stafford Act.
FEMA denies it has a significant budget shortfall, although reports indicate that much of its funding allocated for hurricane relief has been used for housing and transporting undocumented migrants in the amount of $1 billion.8 This has sparked criticism, particularly following Hurricane Helene's devastating impact, as victims in the U.S. Southeast, especially in North Carolina, await critical aid. Reports claim that the Biden administration diverted substantial amounts of FEMA’s disaster relief budget—approximately $640.9 million in 2024—specifically for undocumented migrants.9
This situation has sparked public outrage, with some accusing the administration of mismanaging funds, prioritizing migrant care over disaster relief for American citizens. This has compounded the already slow response to Hurricane Helene, frustrating storm victims who are still waiting for federal assistance.10
FEMA’s lack of supplies
The lack of funds from FEMA has not slowed the outpouring of support from private funding, like Red Cross, Samaritan’s Purse and Elon Musk. Organized responders to disasters from other states have been responding with their own equipment, like boats and helicopters for rescues and taking supplies. One private donor has brought his team of pack mules to enter the rugged terrain to brings supplies.11
Despite the plans announced by the White House which on paper is certainly a robust response,12 apparently there are no trucks even being hired to bring all of these supplies into the area. The supplies that have arrived are in centers that are inaccessible to people without roads which is just about everyone. Cong. Chuck Edwards, representing North Carolina’s 11th Congressional District, is clearly frustrated with the lack of response from FEMA.13
FEMA’s coordination fails
Thomas McCool has done this job before. He is part of a certified association of professionals who know how to respond to a storm, the International Association of Emergency Managers . It is hard to imagine that stories of failure to coordinate with local governments comes from such experience.
Coordination between federal and state officials in criminal matters as well as disasters is always a challenge. Vast planning exercises are usually undertaken as a matter of preparation for a disaster so everyone knows what to expect, who to work with on what issue, and they even get to know their counterparts in various agencies and levels of government. When this does not happen you get chaos in a disaster. FEMA officials have clashed with local officials by trying to take control of the region, issue no fly zones and control the traffic in and out of the area. When neighbors, private sector rescue organizations and disaster funding organizations like Red Cross and Samaritan’s Purse are on the ground, they are already mobilizing before FEMA arrives. FEMA’s efforts to control their zone may lead to restricting those activities. In one such case, FEMA blocked the delivery of Starlink satellite equipment from Elon Musk, requiring Musk to have to resolve the matter at the level of the Secretary of Transportation.14 Not everyone has that clout.
People in Appalachia are hard at work cleaning up and rebuilding and the problem of a lack of supplies from FEMA is being addressed with an unprecedented outpouring of donations of time, equipment, food, supplies and money. What they will not tolerate is the federal government standing in their way.15
I think you all know that I've always felt the nine most terrifying words in the English language are: I'm from the Government, and I'm here to help.
Pres. Ronald Reagan, President’s News Conference, Aug 12, 198616
Like Katrina, there will be a review of the performance of FEMA in the Hurricane Helene disaster response. Unfortunately, any lessons from Katrina may have been lost over time, changing administrations and a general loss of governmental institutional memory. Hurricanes and pandemics wait just long enough for us to have to relearn the lessons of the past when the next one comes along. If we could somehow maintain our institutional memory about how to response to disasters, perhaps clarify constitutional federalism relationships and hold an annual practice session, so everyone understands the official law, not just the way in practice it plays out which is often very different from what we envision in the legal structure of a response.
https://www.newsweek.com/north-carolina-asheville-swannanoa-river-flooding-breaks-record-hurricane-helene-1960619
https://www.nhc.noaa.gov/archive/2024/HELENE.shtml
https://www.whitehouse.gov/briefing-room/presidential-actions/2024/09/28/president-joseph-r-biden-jr-approves-north-carolina-disaster-declaration-3/
https://www.tva.com/Environment/Managing-the-River/Flood-Damage-Reduction
https://www.fema.gov/disaster/stafford-act
https://abcnews.go.com/WNT/HurricaneKatrina/blame-delayed-response-katrina/story?id=1102467
/https://www.congress.gov/118/meeting/house/116300/witnesses/HHRG-118-GO24-Bio-McCoolT-20230810.pdf
https://www.newsweek.com/fema-migrant-funding-hurricane-disaster-relief-1963336
https://nypost.com/2024/10/03/us-news/feds-say-theres-no-money-left-to-respond-to-hurricanes-after-fema-used-640-9m-this-year-on-migrants/
https://www.washingtontimes.com/news/2024/oct/3/hurricane-helene-victims-await-help-biden-harris-t/
https://www.citizen-times.com/story/news/2024/10/04/helene-north-carolina-tennessee-appalachians-mules/75510853007/
https://www.whitehouse.gov/briefing-room/statements-releases/2024/09/30/fact-sheet-update-biden-harris-administrations-continued-response-to-hurricane-helene/
https://edwards.house.gov/media/press-releases/hurricane-helene-update-7-congressman-edwards
https://www.foxbusiness.com/fox-news-tech/elon-musk-slams-fema-helene-response-north-carolina-spacex-starlinks
https://governor.nc.gov/news/press-releases/2024/09/30/unprecedented-response-state-local-and-federal-partners-surge-resources-western-nc-following
https://www.reaganlibrary.gov/archives/speech/presidents-news-conference-23