The Biden administration has committed to addressing environmental and racial injustice across the whole of government, including in federal disaster mitigation and response programs. This commitment is long overdue. Low-income communities and communities of color are often the most exposed to disasters, and the least able to recover after disasters strike. Research also suggests that assistance from the Federal Emergency Management Agency (FEMA) exacerbates wealth inequality, especially along lines of race, homeownership, and education, even after accounting for the impacts of the disaster itself. As climate change makes these disasters more frequent and severe, FEMA has a crucial opportunity to ensure its programming does not exacerbate these inequities and that federal disaster assistance is distributed in an effective and equitable way.
On April 22, 2021, FEMA issued a request for information seeking public comments on how to reform the agency’s programs and regulations to advance equity and bolster resilience to climate change. Over 300 states, tribes, community groups, and organizations responded to the RFI recommending ways FEMA could make its programs more equitable. Within this large group however, few assessed whether FEMA has the legal authority to implement these reforms, and if so, what the scope of that authority is.
In this report, we argue that the Stafford Act’s nondiscrimination provision provides the statutory authority for FEMA to redesign its programs in an “equitable and impartial manner,” including reforming programs that currently disproportionately exclude low-income communities and communities of color. Furthermore, the act’s discretionary function exception gives FEMA extraordinary flexibility in deciding how to integrate equity considerations by shielding most FEMA rules, policies, and other decisions from judicial review.