Hurricane Sandy, Seaside, New Jersey FEMA images
When devastating storms like Sandy and Katrina hit the U.S., what exactly is the role of local governments in planning for and responding to these disasters? If residents or others are harmed as a result of a government’s response or planning, will the governments be exposed to liability? This article will briefly discuss the duties and potential liabilities faced by local governments, as well as provide an overview of hazard mitigation plans.
In order to promote community disaster preparedness, Congress encouraged state and local governments to adopt hazard mitigation plans (HMPs) through the Stafford Disaster Relief and Emergency Assistance Act. The Federal Emergency Management Agency (FEMA) establishes the requirements for these plans. According to FEMA, an HMP “is a community-driven, living document that communities use to reduce their vulnerability to hazards.” Communities use the plan development process to identify risks and find ways to reduce vulnerability. For instance, the plans must contain a description of the type, location, and extent of all natural hazards that can affect the jurisdiction, as well as information on previous occurrences of hazard events and on the probability of future hazard events. (44 CFR section 201.6) Plans may include numerous aspects of disaster response from regional evacuation plans to local land use requirements for building in high hazard areas.
But does having a plan, in and of itself, expose a government to liability following a disaster? In tort law, individuals have a duty to act in a reasonable manner. Liability arises when a person breaches that duty by acting unreasonably and that act is the proximate cause of an injury to a person or property. Local governments have a duty to plan for emergencies and exercise reasonable care in developing plans. Inadequate or improperly executed plans and policies may expose local governments to liability.
Although these duties exist under law, local governments are likely immune from litigation. Sovereign immunity protects governments and their employees from suit; however, this doctrine may not always apply, as it is often waived by federal and state governments. Despite the waiver of sovereign immunity, a discretionary function exception usually protects governments from liability. That is, in instances in which government employees have made discretionary decisions, sovereign immunity will apply. Planning is considered a discretionary function of government.
However, absent legal consequences for a failure to plan adequately, there could be financial consequences for failure to plan. For example, state, tribal, and local governments must develop HMPs before they are eligible for certain types of non-emergency disaster assistance. Without an HMP, communities may miss out on valuable grant opportunities through FEMA’s Hazard Mitigation Assistance (HMA). The HMA provides assistance for implementing long-term hazard mitigation measures, pre-disaster hazard mitigation planning and mitigation, and flood damage mitigation measures. Local governments must update their plans every 5 years. (44 CFR section 201.3(d))
Article written by Terra Bowling, Sr. Research Counsel, National Sea Grant Law Center and Niki Pace, Sr. Research Counsel, Mississippi-Alabama Sea Grant Legal Program