01/28/2021 - Legal Analysis - Sea Level Rise - Student Work

A New Approach to Disaster Relief Funding? The Disaster Recovery Reform Act’s Promise for Pre-Disaster Mitigation

by Ari Sillman, JD 2021

Introduction

2020 was another historically costly year for natural disasters in the U.S. 22 events caused more than $1 billion each in losses, surpassing the previous annual record of 16 events in 2011 and 2017.[1] Forest fires on the west coast invited comparisons to “nuclear winter”[2] while a derecho in Iowa was the costliest “thunderstorm disaster in U.S. history.”[3] The human toll of these disasters has been tremendous—the Red Cross reports that “families in the U.S. have spent more nights in emergency lodging in 2020 than in any other year over the past decade.”[4] Indeed, Hurricane Laura forced thousands of Louisiana residents from their homes,[5] and many remained displaced for weeks after the storm.[6]

Climate change is likely to increase the frequency and cost of natural disasters in the U.S., underscoring the importance of a robust and proactive federal natural disaster response. Fortunately, legislation enacted in 2018 provides a pathway for tribes, states, territories, and localities to respond more proactively to dangerous storms, floods, and fires. The Disaster Recovery Reform Act (“DRRA”) provides a number of tools for the Federal Emergency Management Agency (“FEMA”) and other federal and state actors to better respond to natural disasters. Importantly, the DRRA provides a dedicated funding stream for proactive disaster mitigation. This dedicated funding will allow FEMA to empower local communities to build resilient defenses before disasters strike, saving money and lives. Resilient infrastructure and disaster planning are particularly important in the context of sea level rise, where such damage is incremental but increasingly predictable.

Stafford Act

Federal disaster response is governed by the Stafford Disaster Relief and Emergency Assistance Act (“Stafford Act”). Passed in 1988, the Stafford Act is by nature reactionary and, as recent years have illustrated, dependent on the discretion of the President.[7] The Act defines a “major disaster” as “any natural catastrophe” deemed by the President to “warrant major disaster assistance . . . to supplement the efforts and available resources of States, local governments, and disaster relief organizations.”[8] Thus, by the Act’s design, the federal government is meant to support, not lead, disaster response efforts, and FEMA (among other agencies, including the Small Business Administration and the Department of Housing and Urban Development) is responsible for coordinating the federal response. Only once a state, territorial, or tribal government has formally petitioned the federal government for assistance can the President make a major disaster declaration.[9] After a major disaster has been declared, the federal government can provide funding for states, localities, and individuals, as well as for future hazard mitigation.[10]

Importantly for sea level rise, the Stafford Act’s definition of “major disaster” only includes sudden-onset events, with the exception of drought.[11] Incremental, but still destructive, processes such as sea level rise are not included in the enumerated list of natural disasters, except where they generate sudden events such as flooding. The Stafford Act has thus historically been unhelpful in assisting communities to adapt to sea level rise even though rising seas, and their associated damage, are largely predictable. Fortunately, changes to the Stafford Act, as discussed below, provide a potent tool that FEMA can use to address sea level rise.

Funding issues have also historically impaired federal disaster response and mitigation efforts. The Stafford Act’s Pre-Disaster Hazard Mitigation (“PDM”) Program authorized the President to disperse funds to state and local authorities “to assist in the implementation of predisaster hazard mitigation measures that are cost-effective and are designed to reduce injuries, loss of life, and damage and destruction of property.”[12] These funds, however, were appropriated on an ad hoc basis into a pre-disaster mitigation fund,[13] and have been “unpredictable, and historically much smaller than post-disaster allocations.”[14] From 2013 to 2015, for example, the PDM Program received only $25 million annually in appropriated funds.[15] In 2016, the PDM budget rose to $100 million.[16]

Such an ad hoc approach to disaster mitigation funding makes little sense given that such funds are estimated to “save $6 per $1 spent.”[17] Post-disaster funding, in contrast to pre-disaster mitigation, fails to save lives and mitigate economic damage. Resource allocation in the aftermath of a disaster is often rushed due to pressing need and a desire “to restore normalcy.”[18] These pressures lead communities to rebuild over and over without addressing underlying vulnerabilities, or engaging in meaningful consultation with community members and organizations. Focus on pre-disaster mitigation, by contrast, can be done more deliberately, leveraging research and community input along the way.

DRRA

The 2018 DRRA made several substantive changes to the Stafford Act. First, the DRRA amended the Stafford Act to provide a larger and more reliable funding stream for pre-disaster mitigation.[19] After any major disaster, the President can now “set aside . . . an amount equal to 6 percent” of the total aid awarded the previous year under traditional federal disaster programs from the Disaster Relief Fund (“DRF”)[20] for pre-disaster mitigation efforts.[21] This should amount to an average of $300–$500 million annually, according to FEMA estimates[22]—a dramatic expansion of FEMA’s pre-disaster mitigation funds, though far less than the $65.6 billion that FEMA received in supplemental post-disaster appropriations for 2017.[23] This new National Public Infrastructure Predisaster Mitigation Fund (“NPIPDM”) will be available in all states “that have received a major disaster declaration in the previous 7 years, or to any Indian tribal government located partially or entirely within the boundaries of such States.”[24] This dedicated funding stream removes “the uncertainty associated with the annual appropriations process that funded the Pre-Disaster Mitigation (PDM) grant program.”[25]

Second, the DRRA adjusted the language of the Hazard Mitigation Grant Program (“HMGP”) to permit the federal government to “contribute up to 75% of the cost of hazard mitigation measures which the President has determined are cost effective and which substantially reduce the risk of, or increase resilience to, future damage . . . in any area affected by a major disaster.”[26] The Stafford Act had previously authorized HMGP funding to reduce the risk of future hardship, but included no language permitting the inclusion of resilience into the post-hazard cleanup process.[27] The HMGP is distinct from the PDM/NPIPDM program, as funds for HMGP mitigation efforts are distributed only after a specific major disaster has occurred.[28] Thus, in contrast to PDM/NPIPDM funding, the HMGP perpetuates FEMA’s emphasis on post-disaster response. Still, the new language permitting HMGP grant recipients to consider increasing resilience in the aftermath of a disaster may lead to more proactive reconstruction efforts. The HMGP’s 75 percent cost share is also critical, as most states, tribes, or localities do not otherwise have the funds to prioritize mitigation projects.[29]

The DRRA also provides states, tribes, territories, and localities with new authority to rebuild buildings according to the latest building codes so that they are more resilient to future natural disasters. The Act provides funding for “extra hires to facilitate the implementation and enforcement of adopted building codes”[30] and sets up an expert panel to develop better procedures for cost estimates of repairs.[31] It also permits FEMA to incentivize “the adoption and enforcement of the latest published editions of relevant consensus-based codes,” and to set baseline acceptable building standards “for the design, construction, and maintenance of residential structures . . . eligible for assistance under this Act.”[32] Furthermore, FEMA is permitted to condition cost estimates for these homes upon a forthcoming definition of the term “resilient.”[33] Before the DRRA, FEMA only required that estimates for new home construction meet “codes, specifications, and standards . . . applicable at the time at which the disaster occurred.”[34] These changes should help make the rebuilding process after a disaster more cost-effective—a recent FEMA study found that updating building codes to harden structures from storms would lead to annual cost savings of more than $1.6 billion.[35]

The DRRA’s addition of language authorizing funding for projects that increase resilience is important, as it may allow states, tribes, and territories to fund natural infrastructure projects or other measures that can improve environmental health while decreasing the risk of future natural disasters. The DRRA does not define resiliency, but the law requires FEMA to develop such a definition and FEMA may choose to reuse that definition across multiple sections of the statute.[36] For example, one of the enumerated criteria for determining whether to provide NPIPDM funding is “the extent to which the assistance will fund activities that increase the level of resiliency.”[37] While FEMA has not yet developed a definition of resiliency, there are signs that it is viewing the concept holistically. FEMA recently released its National Risk Index, a geospatial mapping tool, to help HMGP and pre-disaster mitigation applicants “prioritize resilience efforts by providing an at-a-glance overview of multiple natural hazard risk factors.”[38] The National Risk Index determines a community’s risk by weighing the expected damage caused by natural disasters against a community’s “social vulnerability” and “community resilience.”[39] Considering factors such as inequality and socioeconomic differences as part of resilience represents a sea change for FEMA,[40] and holds promise for a more inclusive approach to disaster preparedness and response.

BRIC

In response to changes in the DRRA, FEMA launched the Building Resilient Infrastructure and Communities (“BRIC”) Program, replacing the previous PDM grant program.[41] The BRIC Program will provide funds to states, territories, localities, and tribal governments for pre-disaster mitigation projects.[42] These funds will be distributed according to six “guiding principles”—“[1] supporting communities through capability- and capacity-building; [2] encouraging and enabling innovation; [3] promoting partnerships; [4] enabling large projects; [5] maintaining flexibility; and [6] providing consistency.”[43] Funding for the BRIC program will be provided through the NPIPDM, and FEMA “will provide a federal cost share of up to 75% for most funded projects, and to up to 90% per project for small impoverished communities.”[44]

In its 2020 Notice of Funding Opportunity for the initial BRIC disbursement, FEMA announced up to $500 million in available funding for BRIC applicants with “mitigation projects” and “Capability- and Capacity-Building” programs, as well as “non-financial Direct Technical Assistance.”[45] To be eligible for an award, applicants need to demonstrate that their projects generate at least as many benefits as costs.[46] Such cost-benefit analyses can also incorporate “ecosystem service benefits.”[47] Thus, eligible applicants can use funds on mitigation projects that strengthen natural or “green” infrastructure and count those environmental gains in their cost-benefit analysis.

All states, territories and tribal governments are eligible to apply for this first round of disbursements.[48] Applicants seeking funds for mitigation projects will need to demonstrate that their projects are “cost-effective,” “increase resilience,” and “reduce risk” to life and property.[49] The focus on cost-efficacy and resilience, as opposed to merely property, will provide communities that receive funding with flexibility to tackle the varied problems posed by climate change. This flexible and forward-looking approach to risk has the added benefit of providing disaster-funding for communities to mitigate and prepare for sea level rise, which otherwise would not be covered by traditional disaster response under the Stafford Act. FEMA specifically notes that applicants need to incorporate sea level rise where appropriate into their project proposals.[50] Thus communities can prepare for slow-moving disasters such as sea level rise in order to make sure that their communities are more resilient.

Though FEMA has not yet issued awards for the 2020 funding cycle, FEMA has highlighted mitigation projects that reflect the DRRA’s guiding principles.[51] These include Massachusetts’ 2018 State Hazard Mitigation and Climate Adaptation Plan, the Newtok Village relocation in Alaska, and wetlands restoration in Galveston, Texas.[52] Though FEMA also included several traditional grey infrastructure projects in this list, these three examples highlight FEMA’s new emphasis on natural infrastructure and managed retreat. Such prioritization is critical in the context of sea level rise, as traditional gray infrastructure approaches are often inadequate and overly-expensive ways to build “climate resiliency.”[53] Green infrastructure projects highlight the potential for FEMA to undertake smart, natural infrastructure-oriented pre-disaster mitigation.

Future BRIC funding could be even more ambitious. The Biden administration has reportedly been considering whether to incorporate FEMA’s COVID-related spending into FEMA’s DRF and BRIC calculations.[54] Such an approach could provide FEMA with up to $3.7 billion for BRIC projects, a massive increase in funding available for pre-disaster mitigation. This would also be consistent with the administration’s goal to “move quickly to build resilience . . . against the impacts of climate change that are already manifest and will continue to intensify.”[55]

Conclusion

The DRRA and the BRIC program will allow tribes, states, territories, and localities to prepare for increasingly dangerous and costly natural disasters, including sea level rise. With a dedicated funding stream, FEMA can help communities develop robust pre-disaster mitigation projects, while the DRRA’s language on building codes, inspections, and resilience will allow FEMA to assist communities to build back smarter. Such efforts will help avoid “decisions to rebuild in place, often made seemingly in defiance of climate change, [which] have at times left structures just as defenseless against the next storm.”[56]

 

 

[1] Billion-Dollar Weather and Climate Disasters: Overview, National Oceanic and Atmospheric Administration https://www.ncdc.noaa.gov/billions/ (last visited Jan. 19, 2021).

[2] Thoms Fuller, Wildfires Blot Out Sun in the Bay Area, N.Y. Times (Sept. 9, 2020), https://www.nytimes.com/2020/09/09/us/pictures-photos-california-fires.html.

[3] Bob Henson, Iowa derecho in August was most costly thunderstorm disaster in U.S. history, Washington Post (Oct. 17, 2020), https://www.washingtonpost.com/weather/2020/10/17/iowa-derecho-damage-cost/.

[4] 2020: Need for disaster lodging surges amid COVID-19, American Red Cross (Nov. 24, 2020), https://www.redcross.org/about-us/news-and-events/press-release/2020/2020-need-for-disaster-lodging-surges-amid-covid-19.html.

[5] Greg Hilburn, Louisiana Governor John Bel Edwards: ‘Tens of thousands’ remain displaced by Hurricane Laura, Monroe News-Star (Sept. 2, 2020), https://www.thenewsstar.com/story/news/2020/09/02/hurricane-laura-aftermath-tens-thousands-louisiana-remain-displaced/5690958002/.

[6] See Emma Newburger, ‘I lost everything’: In hurricane-ravaged Louisiana, people struggle to rebuild, CNBC (Oct. 31, 2020), https://www.cnbc.com/2020/10/31/in-hurricane-ravaged-louisiana-people-struggle-to-rebuild-.html.

[7] Scott Wilson and Tim Elfrink, Trump administration rejects, then approves, emergency aid for California fires, including biggest blaze in state history, Washington Post (Oct. 16, 2020), https://www.washingtonpost.com/nation/2020/10/16/trump-rejects-california-disaster-wildfires/.

[8] 42 U.S.C. § 5122(2).

[9] 42 U.S.C. § 5170(a).

[10] See, e.g., 42 U.S.C. § 5170a; 42 U.S.C. § 5170c; 42 U.S.C. § 5174.

[11] See 42 U.S.C. § 5122(2).

[12] Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5133(b) (1988) (amended 2018),  https://www.govinfo.gov/content/pkg/USCODE-2011-title42/pdf/USCODE-2011-title42-chap68-subchapII-sec5133.pdf.

[13] See Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5133(i) (1988) (amended 2018),  https://www.govinfo.gov/content/pkg/USCODE-2011-title42/pdf/USCODE-2011-title42-chap68-subchapII-sec5133.pdf.

[14] Hanah Perls, U.S. Disaster Displacement in the Era of Climate Change: Discrimination & Consultation Under the Stafford Act, 44 Harv. Envtl. L. Rev. 512, 533 (2020), https://harvardelr.com/wp-content/uploads/sites/12/2020/08/44.2-Perls.pdf.

[15] See Federal Emergency Management Authority, National Pre-Disaster Mitigation Fund: Fiscal Year 2017 Report to Congress 4 (2017), https://www.dhs.gov/sites/default/files/publications/FEMA%20-%20National%20Pre-Disaster%20Mitigation%20Fund.pdf.

[16] Id.

[17] Multi-Hazard Mitigation Council, Natural Hazard Mitigation Saves: 2019 Report 1 (2019), https://cdn.ymaws.com/www.nibs.org/resource/resmgr/reports/mitigation_saves_2019/mitigationsaves2019report.pdf.

[18] Kevin Sack and John Schwartz, As Storms Keep Coming, FEMA Spends Billions in ‘Cycle’ of Damage and Repair, N.Y. Times (Oct. 8, 2018), https://www.nytimes.com/2018/10/08/us/fema-disaster-recovery-climate-change.html.

[19] See generally 42 U.S.C. § 5133.

[20] The Disaster Relief Fund is “the primary source of funding for the federal government’s domestic general disaster relief programs.” William L. Painter, Cong. Research Serv., R45484, The Disaster Relief Fund: Overview and Issues 1 (2020), https://fas.org/sgp/crs/homesec/R45484.pdf.

[21] 42 U.S.C. § 5133(i)(1).

[22] Diane P. Horn, Congr. Research Serv., IN11187, Federal Emergency Management Agency (FEMA) Hazard Mitigation Assistance 3 (2020), https://fas.org/sgp/crs/homesec/IN11187.pdf.

[23] William L. Painter, Cong. Research Serv., R45084, 2017 Disaster Supplemental Appropriations: Overview 11 (2018) https://fas.org/sgp/crs/homesec/R45084.pdf.

[24] 42 U.S.C. § 5133(g). In practice, every state and territory should be eligible to receive NPIPDM funding as each of them has been subject to a major disaster declaration in the past seven years. See, e.g., Disaster Declarations for States and Counties, Federal Emergency Management Agency https://www.fema.gov/data-visualization/disaster-declarations-states-and-counties (last visited Dec. 23, 2020).

[25] Federal Emergency Management Agency, Summary of Stakeholder Feedback: Building Resilient Infrastructure and Communities (BRIC) ES-1 (2020), https://www.fema.gov/sites/default/files/2020-06/fema_bric-summary-of-stakeholder-feedback-report.pdf.

[26] 42 U.S.C. § 5170c(a).

[27] Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5170c(a) (1988) (amended 2018).

[28] 42 U.S.C. § 5170c(a).

[29] See, e.g., Naomi Klouda, Federal fund injection boosts effort to relocate Newtok, Alaska Journal of Commerce (May 23, 2018), https://www.alaskajournal.com/2018-05-23/federal-fund-injection-boosts-effort-relocate-newtok.

[30] 42 U.S.C. § 5172(a)(2)(D).

[31] 42 U.S.C. § 5172(e)(3).

[32] 42 U.S.C. § 5172(b)(3)(A)(iii).

[33] 42 U.S.C. § 5172(e)(1)(A)(iii).

[34] See Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5172(e)(a)(A)(ii) (1988) (amended 2018).

[35] Federal Emergency Management Agency, Building Codes Save: A Nationwide Study ES-6 (2020), https://www.fema.gov/sites/default/files/2020-11/fema_building-codes-save_study.pdf.

[36] 42 U.S.C. § 5172(e)(5).

[37] 42 U.S.C. § 5133(g)(11).

[38] National Risk Index Overview, Federal Emergency Management Agency, https://www.fema.gov/flood-maps/products-tools/national-risk-index/overview (last visited Dec. 23, 2020).

[39] The National Risk Index, Federal Emergency Management Agency,   https://hazards.geoplatform.gov/portal/apps/MapSeries/index.html?appid=ddf915a24fb24dc8863eed96bc3345f8 (last visited Dec. 23, 2020).

[40] Thomas Frank, Riskiest Spot for Rising Seas Is 50 Miles from the Ocean, Scientific American (Nov. 25, 2020), https://www.scientificamerican.com/article/riskiest-spot-for-rising-seas-is-50-miles-from-the-ocean/

[41] Building Resilient Infrastructure and Communities, Federal Emergency Management Agency https://www.fema.gov/grants/mitigation/building-resilient-infrastructure-communities (last visited Nov. 22, 2020).

[42] Id.

[43] Id.

[44] Federal Emergency Management Agency, Summary of Stakeholder Feedback: Building Resilient Infrastructure and Communities (BRIC) ES-1 (2020), https://www.fema.gov/sites/default/files/2020-06/fema_bric-summary-of-stakeholder-feedback-report.pdf. Small impoverished communities are defined as communities of 3,000 or fewer individuals that are “economically disadvantaged, as determined by the State in which the community is located and based on criteria established by the President.” 42 U.S.C. § 5133(a).

[45] Department of Homeland Security, Fiscal Year 2020 Building Resilient Infrastructure and Communities 2, 4, DHS-20-MT-047-00-99 (Aug., 2020), https://www.fema.gov/sites/default/files/2020-08/fema_fy20-bric-notice-of-funding-opportunity_federal-register_August-2020.pdf.

[46] “As a metric and eligibility criterion, all mitigation projects must have a benefit-cost ratio (BCR) of 1.0 or greater.” Department of Homeland Security, supra note 45, at 3.

[47] See Federal Emergency Management Agency, FEMA Policy FP-108-024-02, Ecosystem Service Benefits in Benefit-Cost Analysis for FEMA’s Mitigation Programs Policy 2 (2020), https://www.fema.gov/sites/default/files/2020-09/fema_ecosystem-service-benefits_policy_september-2020.pdf.

[48] Department of Homeland Security, supra note 45, at 6.

[49] Id. at 7-8. FEMA further defines these terms to mean that a project must “[c]ontribute[], to the extent practicable, to a long-term solution to the problem it is intended to address” and “[a]ccount[] for long-term changes to the areas and entities it protects and has manageable future maintenance and modification requirements.” Id. at 8.

[50] Id. at 8.

[51] Federal Emergency Management Agency, Hazard Mitigation Assistance Mitigation Action Portfolio 5 (2020), https://www.fema.gov/sites/default/files/2020-08/fema_mitigation-action-portfolio-support-document_08-01-2020_0.pdf.

[52] See generally Federal Emergency Management Agency, supra note 51.

[53] See Greg Browder et al., Integrating Green and Gray: Creating Next Generation Infrastructure 4-6 (2019) https://openknowledge.worldbank.org/handle/10986/31430.

[54] Christopher Flavelle, New U.S. Strategy Would Quickly Free Billions in Climate Funds, N.Y. Times (Jan. 25, 2021), https://www.nytimes.com/2021/01/25/climate/fema-climate-spending-biden.html.

[55] Executive Order on Tackling the Climate Crisis at Home and Abroad, The White House (Jan. 27, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/27/executive-order-on-tackling-the-climate-crisis-at-home-and-abroad/.

[56] Sack and Schwartz, supra note 18.