10/26/2022 - Biden Administration Status Update - Disaster Response

Resilience to Climate Change Impacts

by Hannah Perls

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The Biden administration has released billions in funds for disaster preparedness and climate adaptation and FEMA finalized significant amendments to its rules implementing the National Flood Insurance Program.

The Biden administration has relied on a range of legal tools to improve resilience to the impacts of climate change. These include allocating billions in federal funds to help states and communities prepare for disasters; requiring all federal agencies to craft Climate Action Plans to address risks posed by climate change; and issuing new policies to account for increased flooding risk throughout the US. This diversified approach capitalizes on the federal government’s significant authority over disaster preparedness and response, including providing federally-backed flood insurance. This section discusses the impact and durability of those actions.

Executive Mandates

During his first week in office, President Biden issued several executive orders addressing resilience to climate change impacts. These orders required all federal agencies to account for potential costs and risks to agency operations and facilities posed by climate change; prepare a climate action plan to “bolster adaptation and increase resilience to the impacts of climate change” of the agency’s facilities and operations; and tasked specific agencies with improving the public’s access to climate forecasting and risk data.

On October 7, 2021, the White House released climate adaptation and resilience plans from more than 20 agencies that identify climate risks and vulnerabilities, including those associated with supply chain disruptions and risks to physical infrastructure. Agencies also identified ways to address these risks, including amending procurement practices, accounting for physical risks in the design and purchase of future infrastructure, and integrating climate equity priorities into grant allocation programs. Some agencies also developed new tools to facilitate these goals, including the CDC’s new Heat & Health Tracker and the Department of Defense’s Climate Assessment Tool to identify military installations’ exposure to climate impacts.

Like many of the administration’s climate commitments, these plans and their promises largely rely on agencies’ discretionary authority. Thus, while they can be implemented quickly, they can be just as quickly reversed or abandoned by a subsequent administration.

Increased Disaster Preparedness Funding

While Congress historically allocates significant funding for disaster response and recovery, under President Biden there has been a dramatic increase in funding for pre-disaster preparedness and mitigation projects. Notably, Congress increased funding available for the Building Resilient Infrastructure and Communities (BRIC) program, which began in 2018 as part of the Disaster Recovery Reform Act (DRRA) passed under President Trump. While most federal disaster funds are only available after a disaster, BRIC takes six percent of funds allocated from the previous year and offers those funds as competitive grants for states, tribes, and local governments for pre-disaster mitigation projects. As a result, FEMA allocated $700 million in BRIC and Flood Mitigation Assistance (FMA) funding for FY 2020 with $20 million set aside for federally recognized tribes, $1 billion in BRIC funds for FY 2021, and will allocate $2.3 billion for FY 2022.[1] Many people criticized FEMA’s selection of grantees for FY 2020, with the largest award of $50 million awarded to Menlo Park, California, which has a median household income of $160,784. These decisions were based in part on criteria established under President Trump; FEMA issued new BRIC criteria in 2021, which defined the agency’s allocation of $1 billion for the FY 2021 project cycle. While more interior states received funding in FY2021 as compared to FY2020, coastal states still received 80% of total BRIC funds.[2] FEMA has broad discretion to set program priorities and policies, and these choices are generally immune from judicial review. However, a subsequent administration could immediately revise these policies for future grant cycles.

For more on the BRIC program, see our analysis on The Disaster Recovery Reform Act’s Promise for Pre-Disaster Mitigation.

Flood Risk Management

 On May 20, 2021, President Biden issued an executive order reinstating the federal flood risk management standard (FFRMS),[3] first established via executive order under President Obama but revoked under President Trump. The FFRMS applies to all federally funded infrastructure and requires that infrastructure be built to withstand more severe flooding due to climate change and to avoid development in floodplains where possible. While a subsequent administration can easily revoke the FFRMS via executive order (as President Trump did), the FFRMS will apply to all infrastructure projects funded under President Biden, including those projects funded through the Bipartisan Infrastructure Law.

FEMA also issued a new policy, Risk Rating 2.0, overhauling how the agency calculates premiums under the National Flood Insurance Program (NFIP) for the first time since 1978. The NFIP is the single largest provider of flood insurance in the US, with more than five million policies in over 22,000 communities. Prior to Risk Rating 2.0, FEMA based premium rates on Flood Insurance Rate Maps, or FIRMs, which are often outdated, assign the same level of risk to all properties within a flood zone, and fail to account for future risk. Risk Rating 2.0 overhauls how FEMA calculates a property’s flood risk by assessing it on a property-by-property basis. For the first time, FEMA’s methodology also ties policyholders’ premium rates to the value of the insured property’s home value, addressing prior critiques of the NFIP that low-value homes effectively subsidized payouts for high-value homes. The policy change was first proposed under the Trump administration, and the new premiums took effect on April 1, 2022 for existing policyholders. Several Senators introduced bills to postpone the policy’s effective date, but none garnered sufficient support. The new rates, therefore, represent one of the administration’s most impactful and durable efforts to address climate change impacts at the household level.

The administration is also collecting information on how private insurers are responding to climate-related risks. In Oct. 2022, the Treasury Department’s Federal Insurance Office announced plans to collect information from insurance companies on climate-related exposures and how that exposure affects insurance availability. While states regulate private insurers, the data collection will help identify issues or gaps in private insurance markets where climate change-related risks may contribute to “a systemic crisis” in the insurance sector.

For more information, listen to our CleanLaw episode with Joel Scata and Hannah Perls on Fixing the National Flood Insurance Program.

[1] Fact Sheet: President Biden’s Executive Actions on Climate to Address Extreme Heat and Boost Offshore Wind, White House (July 20, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/07/20/fact-sheetpresident-bidens-executive-actions-on-climate-to-address-extreme-heat-and-boost-offshore-wind/ [https://perma.cc/S62J-ZXZN].

[2] Building Resilient Infrastructure and Communities FY 2021 Subapplication and Selection Status, FEMA (last updated Aug. 12, 2022), https://www.fema.gov/grants/mitigation/building-resilient-infrastructure-communities/after-apply/fy-2021-subapplication-status [https://perma.cc/LU2Y-ALKJ]. A study from Headwaters Economics suggests that the distribution of BRIC funds is due in part to some states’ limited capacity to apply for and secure BRIC funding. Capacity-limited states still struggle to access FEMA BRIC grants, Headwaters Economics (Aug. 2022), https://headwaterseconomics.org/equity/capacity-limited-fema-bric-grants/ [https://perma.cc/9NKJ-JYDN].

[3] On April 20, 2021, the White House general counsel determined that Biden’s EO did not reinstate the flood risk management standard as intended. On May 20, President Biden issued EO 14030 in which he explicitly reinstated the standard. Exec. Order No. 14,030, 86 Fed. Reg. 27,967 (May 25, 2021); see also Thomas Frank, A Biden Climate Order Fails, Leaving Agencies Grasping, E&E News, Apr. 20, 2021, https://subscriber.politicopro.com/article/eenews/1063730347.