All Rise

Disaster law comes into its own

By Barbara PeckThe Ohio State University Law School Magazine | Spring 2015


Hurricane Katrina. September 11, 2001. The Deepwater Horizon explosion and oil spill. All were disasters – some natural, some man-made – that left a permanent mark on people, cities, the American psyche, and the legal profession. Disaster law is an emerging field that has seen rapid growth, especially since the September 11th terrorist attacks, and 2005 (the year the reinsurance industry almost went belly up). When Ebola made its way to the United States in 2014, a new type of catastrophe loomed, panic ensued, and legal questions arose: Who can be quarantined? Why isn’t the Centers for Disease Control and Prevention (CDC) doing more? While every disaster provides its own unique questions, the law provides many of the answers.

“In disaster law, there are many intersecting legal questions both horizontally, across issue areas ranging from national security to environmental law, and vertically, involving complex jurisdictional questions as to the competency and responsibility of local, state, and federal governments in disaster preparedness and response,” said Professor Cinnamon Carlarne, who will teach Moritz’s first course in disaster law this fall. “Disaster law is an interesting and evolving area of law that demands greater attention. At a very basic level, the first question you have to ask is what constitutes a disaster and then you have to contemplate how to cope with disasters at every stage, from preparedness, to response, to recovery.”

In the United States, there are not only complex questions of federal and state roles and responsibilities, but also active questions involving insurance law, environmental law, administrative law, public health laws, energy law and more. There are also important equity questions. Disasters tend to have the most devastating effects on vulnerable populations and, even in the wake of disasters, it is often the poorest and most disenfranchised members of society that are disproportionately negatively affected by disasters, whether it is because they lack insurance to rebuild, because their community is chosen as the site for post-disaster waste and debris disposal, or simply because their loss and damage is more difficult to bounce back from, Carlarne said.

Who is in charge here?

Whether planning for, responding to, or rebuilding from a disaster, there is often confusion by the public as to who is in charge and responsible. While political finger pointing is often an unfortunate byproduct of the process, the law, in many instances, is clear.

“The public perception of events like Hurricane Katrina and Ebola is that these events are really big deals and therefore the federal government should play a major role,” said Professor Dakota Rudesill, who teaches National Security Law and Process, which made its debut at Moritz in 2013. “But, the default under American law is that the states have primary responsibility for civil unrest and natural disasters.”

The federal government may provide counsel and resources, if asked, but local first responders – such as fire, police, and health – are first on the scene, and individual states take the initial lead on coordinating a response. However, if terrorism is suspected, the actors change.

“In events of terrorism, the federal government can bring an array of powers and resources to bear because terrorism – domestic or international – is a federal crime. Terrorism by definition is a political act,” Rudesill said. “There is a law enforcement aspect that falls under the jurisdiction of the FBI. Ground Zero in New York after 9/11 was a civil disaster site, it was the site of an armed attack on the United States by an international adversary, but it was also a federal crime scene and the FBI had primary responsibility for the investigation.”

What is less often seen, however, is the presence of the U.S. military. Under the Posse Comitatus Act, which was originally passed just after Reconstruction when Union troops were still stationed in the South, the U.S. military is generally barred from conducting law enforcement activities on U.S. soil. The rule gets tricky when it comes to the National Guard. By default, the National Guard falls under the authority of the state governor, in which case, it can enforce state law. However, under the U.S. Constitution the president can “federalize” the National Guard at any point, bringing them under federal jurisdiction and making them ineligible for law enforcement duties.

“In the context of a civil emergency, if the National Guard is mobilized the president will usually prefer to leave it on state duty to avoid a problem with the Posse Comitatus Act,” Rudesill said. “That also reflects our traditions of separating law enforcement and the military, our federal government being one of limited powers, and most matters being handled by state and local government. Law enforcement is something done mostly by local and state civil authorities, because they are more immediately accountable to the people the law governs. The police commissioner works for the mayor, for example, who is elected by the same people the local police department encounters on the beat. The same ideas animate a preference for keeping the National Guard on state duty. Then, it makes sense for them to supplement state and local law enforcement. The troops we saw in New York after 9/11 were primarily National Guard troops on state duty.”

Posse Comitatus has other limitations, Rudesill notes. It does not apply to the Coast Guard, which enforces maritime law. It does not ban the federal armed forces from providing equipment, information, and other assistance to states and localities, so long as federal troops are not directly doing law enforcement, such as searches and seizures. And under particular circumstances federal troops could engage in law enforcement, for example if the military were enforcing martial law, or if the president had invoked the Insurrection Act. The president can order regular federal troops or the National Guard on federal duty to enforce the law if people are being denied the law’s protection due to insurrection or violence, and state authorities are unable or unwilling to rectify the problem. President Eisenhower famously used federal troops to enforce a court order for the racial integration of Central High School in Little Rock, Arkansas, in 1957, in the face of a mob that had gathered to defy the law.

Aside from such extreme circumstances, the default remains federal deference to the states in the first instance.

In the recent Ebola outbreak, many questioned why the CDC didn’t swoop in and take control of the treatment of the sick patients, or mandate stricter hygiene practices for hospital staff.

“When the CDC flies in to these things, they are there to offer help, not take over,” said Professor Micah Berman, who teaches a course in public health law, which also made its debut in 2013. “The CDC’s direct powers focus on people coming into the country from abroad, or people traveling between states. It does surveillance and runs a lot of labs to support the states. It can create best practices or protocols for the states. But, in most cases, its job is really to offer support.”

Preparing for the worst

The same federal-state law dynamic is at play in disaster preparedness and planning.

“When it comes to land use planning and zoning issues, these areas are at the very core of state power,” Carlarne said. “The federal government has some room to influence, but very little ability to dictate state decision-making processes, in this regard.”

As with other policy areas, the federal government tries to influence state laws by putting contingencies on federal funds. This tactic is just beginning to be used to encourage states to begin putting in place strategies to prepare for climate change, which many experts describe as both exacerbating existing disaster threats and posing new challenges through processes of sea level rise, salt water incursion, and increasing storm frequency and intensity, to just name a few .

“The Coastal Zone Management Act is a federal tool that incentivizes states to develop and implement comprehensive coastal zone management plans. Coastal states, of which Ohio is one, that develop federally approved coastal zone management plans are eligible to receive federal financial assistance to implement their plan,” Carlarne said. “This is an example of a tool that the federal government can use to support and encourage state efforts to develop coastal zone plans that account for the ways in which climate change, particularly through storm surge and rising sea levels, will affect coastal areas. At the moment, however, states still have considerable flexibility in structuring coastal zone management plans and determining the extent to which these plans consider climate-related impacts and there is not a lot of interaction or consistency between the states as to how to begin making coastal areas more resilient in the face of climate change.”

The federal government is not the only player in this game. More than a decade ago, the United Nations started the Office of Risk Reduction, in part because the number of people in the world living in hurricane or cyclone prone coasts has tripled in the past 50 years and the number of people who live in flood-prone river basins has doubled. Overall, the initiative reports that lives lost to disasters has dropped in the past decade, but costs have continued to escalate.

“Where you have the highest economic loss in terms of dollars most often is in relation to disasters that occur in developed countries, where the existing infrastructure is extensive and expensive to replace and where there are sophisticated metrics for calculating direct and indirect disaster-related losses. In contrast, the disasters where more lives are lost are often in the developing world,” Carlarne said. “But, when you drill down to look at the economic loss as a percentage of the gross domestic product of a developing country, the view changes and it becomes easier to see the ways in which even the ‘less expensive’ disasters can have devastating impacts in both developed and developing countries.”

Preparations and strategic planning do not just fall into the purview of governments and NGOs, however. Insurance for individuals and businesses often plays a key role in the ability to recover from a disaster. The insurance business has changed significantly over the past decade, forcing property and business owners to renegotiate contracts, or in some instances, go uninsured.

The 2004 and 2005 hurricane seasons were two of the most active on record, leading to billions in claims. What happened next is controversial. While almost all policies in the affected areas had flood exclusions, many insurers were required to pay for water damage caused by the storms. Policymakers pressured insurers holding policies for “wind coverage” to cover associated damage, under the notion that the wind pushed the water, which then damaged the property. In most cases, the courts sided with policymakers, leading to what the industry calls “coverage leakage” – paying for damage the policywriter didn’t anticipate. As a result, underwriting guidelines are much more stringent, deductibles and rates rose, definitions and terms were revisited, and, in many cases, policies were dropped all together.

“Since 2005, insurance companies – influenced by mounting concerns within the reinsurance industry – have been much more discriminating about what they will and will not insure. There are more properties that are simply not insurable,” Carlarne said. “If the properties are already there, what do we do – just leave people uninsured? Create new federal or state high-risk pools? There already are a lot of questions about the viability of the Federal Flood Insurance Program. As the costs of disasters mount and as more and more properties are determined to be ineligible for commercial insurance, there is a point at which we have to ask the question of whether certain areas should simply be off-limits for new- and re-builds.”

In the recent Ebola outbreak, the owner of a bridal shop in Akron, Ohio, thought she was prepared with business interruption coverage. Shortly after Dallas nurse Amber Vinson visited her store in October 2014, the owner quickly learned otherwise. According to People Magazine, the shop was voluntarily closed for 21 days for decontamination and a quarantine period. An “infectious disease” exclusion in the insurance policy, however, prevented the shop owner from collecting. With lost business and cancelled orders after reopening (ironically, including Vinson’s, whose lawyer sent a certified letter to the store cancelling her bridesmaids’ dresses), the store, which had been planning an expansion at the time, was forced to cease operation.

When disaster strikes

In addition to the question of who has the authority to take action, there is also the issue of what can actually be done. As storm clouds or a forest fire loom on the horizon, mandatory evacuations are often called. Yet, some people always choose to stay put.

“It is difficult to negotiate in an emergency. Providing clear information regarding potential consequences is critical,” said Professor Sarah Cole, director of the alternative dispute resolution program at Moritz. “Bringing together church leaders, community leaders, and others who really know the people affected is important. Trust is a major issue. People do not like the government directing them to leave their homes. Having trained mediators or facilitators ready and integrated into the community is the optimal solution, but that can be resource intensive.”

If the power of persuasion does not work, there is an open question regarding how much force police should use to make people evacuate before or during an emergency.

“There is going to be a Fourth Amendment question during a mandatory evacuation – it is a seizure,” Professor Ric Simmons said. “The police first have to have the authority to act, which will be defined by state law. Public safety exceptions do apply even if the person is only going to hurt themselves.”

In the case of Ebola or other infectious diseases, the issue is more about keeping people quarantined in – not getting them out. Police, and the National Guard, if called in by the governor, will look to policymakers to clearly define the rules of engagement, and rules for the escalation of force.

“Government quarantines are a Fourth Amendment question of reasonableness,” Simmons said. “The more dangerous the situation, the more reasonable it is to use a higher level of force.”

Policymakers also have to consider civil liability to the rest of the public if a quarantine is not enforced and disease spreads.

“The duty of care is not well-defined by courts. If a hospital permits people who have been exposed to Ebola to reenter the community, it faces potential liability,” Cole said. “Of course, the detained person might argue the classic tort of false imprisonment, but the defense would be public necessity, which is a clear defense to an intentional tort.”

When the incident is related to terrorism, the authority of the U.S. military grows substantially. On 9/11, Vice President Dick Cheney gave orders to have United Flight 93 shot down, but the plane crashed prior to the order being executed.

“That incident was so alarming in part because the vice president is legally not in the chain of command,” Rudesill said. “The president, the secretary of defense – someone in the military chain of command down to the pilot flying a fighter jet – could in theory make that call, but not the vice president.”

This incident underscores the importance of planning, a clear chain of command, and crisis decision making exercises involving all the key players, Rudesill said.

Recovery, compensation, and charity

Once the dust settles, the Stafford Act, which will also define the level of disaster that just ensued, will dictate much of the federal funding related to recovery and rebuilding. Additional funding sources are also essential, however. For example, the Stafford Act dictates that structures rebuilt with federal funds must be rebuilt exactly the same as the structure lost. This would work perfectly for a school built in 2002 and damaged this year. It would not work so well for a school that was originally built in 1960 and was still in use when damaged in 2014. Religious buildings or religious nonprofits cannot be rebuilt with federal dollars.

Another reason rebuilding can be a slow process is because of the web of other laws that must be navigated, many in precedent-setting ways. For example, Superstorm Sandy wreaked havoc on the East Coast in the fall of 2012, leaving in its wake mountains of debris. Some toxic. Some in wetlands. Cities just couldn’t run a bulldozer down Main Street or take a back hoe to the beach and dump the debris in the nearest landfill. In total, more than 33 federal laws or regulations applied to the removal of debris from Superstorm Sandy, including the Clean Water Act, Fishery Conservation & Management Act, Endangered Species Act, Migratory Bird Treaty Act, and more. In the end, more than 6,195,784 cubic yards of debris were removed from the public right-of-way alone.

The debris also must be put somewhere, which often raises questions of social justice. There has been substantial debate over the debris related to the Deepwater Horizon oil spill, including oil-soaked materials used to clean beaches, much of which ended up in landfills in poor, high minority population areas.

In addition to debris, lives must also be rebuilt. In some instances, there is a clear party responsible. Instead of handling hundreds or thousands of lawsuits, a company may set up a compensation fund to help victims. This was done by BP for the oil spill as well as the airlines during 9/11.

“In general, people seem to like the compensation funds,” Cole said. “They feel like no one is questioning the veracity of their claim. It is a much more efficient process than litigation. Typically, a special master administers the claims. Claims judges are on the ground, ready to help the parties work things out so that everyone is satisfied with the outcome. Even if a victim does not get quite as much as they could have during litigation – we never will know – they usually like that they are able to have a hearing, have their claim reviewed, and be paid out fairly quickly.”

The choice to opt-in or opt-out of the compensation fund lies with the victim. In the BP oil spill, some victims did opt to take their claim to court rather than work through the fund.

In other instances, the question of fault is not so clear. Did the building collapse because of the earthquake, or because of faulty design, or construction that was not to code?

“Causation is the biggest issue in any torts case,” Cole said.

Or, sometimes, bridges just fall from the sky for no apparent reason, as was the case with the I-35W bridge, over the Mississippi River in Minneapolis, in 2007. The kin of the 13 killed and the 145 injured survivors were first helped by the I-35W Survivor Compensation Fund, set up by the state. But, Minnesota sued the Jacobs Engineering Group, which in 1999 acquired the now-defunct original design firm that worked on the bridge in 1967. Federal investigators determined that the bridge’s design led to the collapse. Jacobs Engineering Group argued vigorously that a state law put a 10-year limit on liability, but state courts let the case proceed and the U.S. Supreme Court refused to grant certiorari. The parties reached an $8.9 million settlement in 2012, which went into the compensation fund. The state also sued an engineering company that was hired to evaluate the bridge the year before it fell. That firm settled with the state for $5 million, and with the victims and families for more than $52 million.

Even the outpouring of charity that often follows a disaster creates legal issues. “Disasters frequently raise a number of threshold questions about the solicitation and distribution of funds for charitable purposes,” said Professor Garry Jenkins, who teaches a course on the law of nonprofit organizations. “People and organizations often want to help, but federal tax law and regulations are easily implicated.”

As a nonprofit lawyer working in New York City in September 2001, Jenkins dealt with a range of legal complications for nonprofit clients responding to the 9/11 disaster. “Problems like whether planned activities of the nonprofit fall within the organization’s current corporate purposes, problems with earmarked gifts for particular victims, problems related to whether a financial needs analysis was required to provide cash assistance to victims or could charitable organizations aid small businesses, problems related to definition of charitable class were all particularly thorny. Our group worked very hard for months thereafter.”

For example, some donors may seek to target their gifts, for example, to help certain categories of individuals, such as uniformed officers and their families, survivors of deceased employees of particular corporations, affected children, residents of a particular neighborhood, or those in certain lines of work, but “the more beneficiaries are narrowly defined, the greater the chance of private benefit and that the ‘charitable class’ requirement will not be met,” Jenkins said. Eventually Congress passed the Victims of Terrorism Tax Relief Act of 2001, adopting a more relaxed standard for aid to September 11 victims than to victims of other disasters.

A new way of thinking of disasters

With the economic costs for disasters continuing to rise and insurance companies limiting coverage, more thought is being put into strategic planning and preparations to avoid catastrophic damage. In the climate change planning community, for decades there was a general call to mitigate the effects of climate change through the reduction of greenhouse gases and other measures. While that principle is still important, there has now been a significant shift toward adaptation. This is important to disaster law for two reasons: 1) for some disasters, including hurricanes and forest fires, it is generally believed that climate change has exacerbated the disasters, making them stronger or more frequent; and 2) many of the policies being used to address climate change issues, including rising sea levels, may also reduce damage from a disaster.

“Adaptation planning is happening all over the world, including in the United States,” Carlarne said. “At the international level, adaptation planning is taking place at many levels. Many of the efforts are taking place at the local level but are supported by the UN and other international organizations. Further, there is more and more work being done to improve our understanding of risk, in this context. Risk assessments examine levels of physical exposure while also assessing the vulnerability of the relevant community, considering social, economic, and political factors. Resulting risk assessments help us understand how we can begin to make systems more resilient to change, but also what kinds of risks we can avoid and, thus, must plan for.”

Increased levels of financing are about to start flowing in the direction of adaptation projects. The parties to the United Nations Framework Convention on Climate Change have created a new Green Climate Fund and the United States and other members of the global community have agreed to help mobilize upwards of $100 billion a year (public and private funding) for climate change mitigation and adaptation projects around the world. Outside the context of the climate change regime, projects funded through the World Bank have started in the Philippines, which besides being a common target for storms, is also disproportionately impacted by climate change because of ocean currents and wind patterns. The World Health Organization is funding adaptation projects in Barbados, Fiji, and other locations related to drought and water scarcity.

“We are about to see a significant amount of money mobilized to facilitate adaptation efforts. Yet, the existing financing system lacks structure and coherency. There is not a lot of information on what types of projects should be funded, what types of projects work, and – at the intersection of disaster law and adaptation – how we should go about rethinking disaster in such a way as to account for not only sudden onset disasters, but also slow onset disasters. This really is an emerging area of law and policy,” Carlarne said. “We need to develop a more sophisticated understanding of all of the moving pieces – thinking about how disasters are defined, how climate change exacerbates disaster-related threats, how losses are determined, how need is evaluated, how money is mobilized, how effectiveness is measured – there are a lot of unanswered questions and it is important that we begin to think these things through.”

In the United States, communities are starting to take preparedness and response planning seriously. From first responders not being able to talk to each other during 9/11 to hospital generators being kept in the basement during Hurricane Katrina, there were many lessons to be learned.

“In 9/11, there was a ton of confusion, in part because there just was not a lot of institutional knowledge at the federal, state, or local level until there was actually an event like that,” Rudesill said. “We also saw a similar situation with the LA riots and especially with Hurricane Katrina. But, the response to Superstorm Sandy was greatly improved because of lessons learned from Katrina and a consensus among the states involved and federal government that everyone really wanted to work together and get this right.”

From droughts and floods to forest fires and terrorism, the types of disasters that the world must respond to is large and limited only by the imagination. Not to mention, Carlarne added, that “the number of legal questions that can arise are numerous.”