Chapter Two: National Preparedness - A Primer

Disaster response in America traditionally has been handled by State and local governments, with the Federal government playing a supporting role. Limits on the Federal government’s role in disaster response are deeply rooted in American tradition. State and local governments—who know the unique requirements of their citizens and geography and are best positioned to respond to incidents in their own jurisdictions—will always play a large role in disaster response. The Federal government’s supporting role respects these practical points and the sovereignty of the States as well as the power of governors to direct activities and coordinate efforts within their States. While we remain faithful to basic constitutional doctrine and time tested principles, we must likewise accept that events such as Hurricane Katrina and the terrorist attacks of September 11, 2001, require us to tailor the application of these principles to the threats we confront in the 21st Century. In later chapters, as we discuss the breakdowns in delivering Federal support and capabilities in response to Hurricane Katrina, the need for a flexible Federal response and a larger Federal role in catastrophic contingency planning becomes clear.1

Federalism

The Founders created a constitutional framework in which each State, upon ratification of the Constitution, ceded some of its powers to the Federal government to create one united yet limited central government.2 The Constitution sets forth the specific and delegated powers that delineate Federal and State roles. It tells us which branches and offices will be part of the Federal government, what powers they may exercise, and what limitations constrain them.3 The Constitution also respects State powers by reserving those powers not given to the Federal government to the States or to the people.4 Our Federal system provides a structure to enable coordination between the United States government and State governments to create a balance that respects the sovereignty of both entities.

The United States has long operated on the general premise that governments exist to do those things that individuals, alone or in free and voluntary association (e.g., families and charities), are not best positioned to do for themselves, such as ensuring public safety and providing law enforcement. Following these principles, the Founders created the Federal government to do those things that States cannot or should not do individually, such as defending the Nation, conducting foreign relations, and ensuring open and free interstate commerce.5
Accordingly, State and local governments assume the first and foremost line of defense against civil disturbance and threats to public safety. The Federal government guarantees its assistance to protect the States in their existence as representative republican governments from the external threat of invasion or attack, and against internal subversion or rebellion.6 Federal laws reinforce the concept that the Federal government should respect State sovereignty. For example, section 331 of the Insurrection Act requires the State legislature or, in its absence, the State governor, to make a formal request of the Federal government before the President may send in Federal troops to assist State efforts to restore order.7

The role of the Federal government in disaster response has evolved significantly throughout the past 200 years.8 In 1803, in what is widely seen as the first instance of Federal intervention in a disaster scenario, Congress approved the use of Federal resources to assist the recovery of Portsmouth, New Hampshire, following a devastating urban fire.9 Between 1803 and 1950, the Federal government intervened in over 100 incidents (earthquakes, fires, floods, and tornados), making Federal resources available to affected jurisdictions.10 These interventions were limited and were delivered in an ad hoc manner without an established Federal role or coordinated response plan.11 The Federal government also quickly recognized the role that private non-profit organizations can play. In 1905, Congress chartered the American Red Cross as a charitable organization to provide disaster relief support during crises. The value of this decision was demonstrated a year later, when the Red Cross provided key assistance during the San Francisco Earthquake and Fire of 1906.12

During the Great Depression, the approach of the Federal government became more proactive. For example, Congress endowed the Bureau of Public Roads with the authority to provide continuous grants to States for the repair of disaster-damaged infrastructure and charged the Army Corps of Engineers with the task of mitigating flood-related threats.13 This piecemeal legislative approach was eventually replaced by the Civil Defense Act of 1950—the first comprehensive legislation pertaining to Federal disaster relief.14

In 1952, President Truman issued Executive Order 10427, which emphasized that Federal disaster assistance was intended to supplement, not supplant, the resources of State, local, and private sector organizations.15 This theme was echoed two decades later in President Nixon’s 1973 report, “New Approaches to Federal Disaster Preparedness and Assistance.” The report clearly stated that, “Federal disaster assistance is intended to supplement individual, local and state resources.”16

Today, the centerpiece legislation for providing Federal aid in disaster relief, the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), reinforces the principle that response efforts should first utilize State and local resources.17 The Stafford Act establishes a process for State governors to request assistance from the Federal government when an incident overwhelms State and local resources.18 To provide and coordinate Federal aid to the people and the State and local governments impacted by a disaster using all Federal agencies, the Act authorizes the President to issue major disaster or emergency declarations, and to appoint a Federal Coordinating Officer (FCO) to coordinate the administration of Federal relief. The Stafford Act is frequently invoked in disaster and emergency response. Since 1974, an average of thirty-eight major disasters have been declared annually. In 2004, a near record disaster season, the President issued sixty-eight major disaster declarations and seven emergency declarations.19

In a 21st Century world marked by catastrophic terrorism and natural disasters, the Federal government must build upon our foundation of disaster relief and prepare for the larger role we will be called upon to play in response to a catastrophic event.

Disaster Response Structure

After the terrorist attacks on September 11, 2001, the Federal government realized that additional measures were needed to ensure effective coordination with State and local governments and took steps to alter how it responds to emergencies. In the National Strategy for Homeland Security, issued in July 2002, President Bush called for a major initiative to build a national system for incident management and to integrate separate Federal response plans into a single, all-discipline20 incident management plan. The President proposed that the initiative be led by the yet-to-be-created Department of Homeland Security (DHS).21 In creating DHS in November 2002, Congress included the initiative as part of the Secretary of Homeland Security’s responsibilities.22 The Homeland Security Act was officially signed into law by the President on November 25, 2002.23 On March 1, 2003, DHS assumed operational control of the nearly 180,000 employees from portions of 22 departments, agencies, and offices that were combined to constitute the newly created Department.24

In February 2003, the President issued Homeland Security Presidential Directive 5 (HSPD-5). Homeland Security Presidential Directives are presidential orders that establish national policies, priorities, and guidelines to strengthen U.S. homeland security. In HSPD-5, the President specifically directed the Secretary of Homeland Security to: (a) create a comprehensive National Incident Management System (NIMS) to provide a consistent nationwide approach for Federal, State, and local governments to work effectively together to prepare for, respond to, and recover from domestic incidents, regardless of cause, size, or complexity, and; (b) develop and administer an integrated National Response Plan (NRP), using the NIMS, to provide the structure and mechanisms for national level policy and operational direction for Federal support to State and local incident managers.25

HSPD-5 further directed the heads of all Federal departments and agencies to adopt the NIMS, use it in their individual domestic incident management activities, participate in the NRP, and assist the Secretary of Homeland Security in its development and maintenance.26 The NIMS and the NRP were completed in 2004 and provide the foundation for how the Federal government organizes itself when responding to all disasters, including Hurricane Katrina.

The National Incident Management System

The National Incident Management System (NIMS) establishes standardized incident management protocols and procedures that all responders—Federal, State, and local—should use to conduct and coordinate response actions. It sets forth a “core set of doctrine, concepts, principles, terminology and organizational processes to enable effective, efficient, and collaborative incident management at all levels” of government.27 The NIMS provides a common, flexible framework within which government and private entities at all levels can work together to manage domestic incidents of any magnitude.28 In March 2004, the Secretary of Homeland Security approved the NIMS and sent a memorandum to officials at all levels of the government asking for continued cooperation and assistance in further developing and implementing the NIMS.

The central component of the NIMS is the Incident Command System (ICS). The ICS was developed and refined over many years by incident commanders at the Federal, State, and local levels and was being successfully implemented throughout the country prior to being included in the NIMS.29 The ICS provides a means to coordinate the efforts of individual responders and agencies as they respond to and help manage an incident. The ICS organization, the structure and size of which can be tailored to the complexity and size of any given incident, comprises five major functional areas—Command, Planning, Operations, Logistics, and Finance/Administration.30 This system grew out of the challenges of interagency coordination experienced when fighting wildfires in western states.

ICS requires that a command system be established from the onset of incident operations, thereby ensuring a unified command and the efficient coordination of multi-agency and multi-jurisdictional efforts.32 Recognizing that most incidents are managed locally, the command function under ICS is set up at the lowest level of the response, and grows to encompass other agencies and jurisdictions as they arrive. Some incidents that begin with a single response discipline (e.g., fire or police department) within a single jurisdiction may rapidly expand to multi-discipline, multi-jurisdictional incidents requiring significant additional resources and operational support.33 The concept of unified command is both more important and more complicated when local, State, and Federal commanders are required to coordinate their efforts. ICS clarifies reporting relationships and eliminates confusion caused by multiple, and potentially conflicting, directions and actions. The National Response Plan requires senior officials from multiple levels of government to come together at a single location to establish a common set of objectives and a single incident plan. This group, referred to as the “Unified Command,” provides for and enables joint decisions on objectives, strategies, plans, priorities, and public communications.34

The National Response Plan

Adopted by the Federal government in December 2004, the NRP is an all-hazards plan that establishes a single, comprehensive framework for managing domestic incidents across all levels of government and across a spectrum of activities that includes prevention, preparedness, response, and recovery.35 It provides the structure and mechanisms for coordinating Federal support to State and local incident managers and for exercising Federal authorities and responsibilities incorporating the NIMS structure.           

The NRP is based on a number of fundamental precepts. Consistent with the traditions and customs that have developed under American federalism, the NRP is built on the premise that incidents are generally handled at the lowest jurisdictional level possible.36 Local authorities provide the initial response capabilities to every incident, including man-made and natural disasters, and when overwhelmed, request assistance from neighboring jurisdictions. When incidents are of such a magnitude that these resources are overwhelmed, resources are requested from the State, which draws on its own internal emergency response capabilities or requests assistance from neighboring States through mutual-aid agreements. Many large and devastating events are handled this way without any Federal assistance.37 When Federal response assistance is required, the NRP employs a systematic and coordinated approach to incident management at the field, regional, and Federal agency headquarters levels, establishing protocols for such activities as reporting incidents, issuing alerts and notification, coordinating response actions, and mobilizing resources.38 Though the NRP generally seeks to preserve the primary role of State and local bodies as first responders, it does recognize some events will be so catastrophic that they will require a greater proactive Federal government response (as discussed in further detail in the “Planning a Proactive Federal Response” section of this chapter).39 However, while the NRP recognized the need for a proactive Federal response in a catastrophe, no final plan has been put in place to make this operational.

What Triggers the NRP

The NRP "covers the full range of complex and constantly changing requirements in anticipation of or in response to threats or acts of terrorism, major disasters, and other emergencies.”40 It applies to “all Federal departments and agencies that may be requested to provide assistance or conduct operations in the context of actual or potential Incidents of National Significance.”41 The NRP is also designed to be flexible and scalable: “Consistent with the model provided in the NIMS, the NRP can be partially or fully implemented in the context of a threat, anticipation of a significant event, or the response to a significant event.”42 The NRP can be used to selectively implement specific components in unique situations or can be fully implemented to bring to bear the full efforts and resources of the Federal government.

However, the specific triggers for the National Response Plan and its various components are unclear. In HSPD-5, the President instructed the Secretary of Homeland Security to coordinate the Federal government's resources utilized in response to or recovery from terrorist attacks, major disasters, or other emergencies if and when any one of the following four conditions applies:

1. A Federal department or agency acting under its own authority has requested the assistance of the Secretary;
2. The resources of State and local authorities are overwhelmed and Federal assistance has been requested by the appropriate State and local authorities;
3. More than one Federal department or agency has become substantially involved in responding to the incident; or
4. The Secretary has been directed to assume responsibility for managing the domestic incident by the President.43

The NRP bases the definition of Incidents of National Significance (INS) “on situations related to” these HSPD-5 criteria.44 However, the NRP lacks sufficient clarity regarding when and how an event becomes an INS. There are two dimensions to this issue. First, it is unclear whether satisfaction of one or more of the stated criteria is sufficient for an INS to exist, or whether additional considerations must apply. Second, the NRP is unclear as to whether the Secretary must formally declare an INS or, alternatively, whether an INS is triggered automatically when one or more of these criteria are satisfied, including when the President declares a disaster or emergency under the Stafford Act. With respect to Hurricane Katrina, when the Secretary of Homeland Security formally declared the event to be an INS on Tuesday, August 30, 2005, arguably an INS already existed, because two of the four HSPD-5 criteria noted above had already been satisfied.45

The lack of clarity on the second issue is illustrated by two seemingly inconsistent NRP provisions; the Scope and Applicability section states that the Secretary is responsible for declaring an INS,46 which supports an interpretation that an INS cannot be in effect without a declaration by the Secretary, while the Planning Assumptions section states that “all Presidentially declared disasters and emergencies under the Stafford Act are considered Incidents of National Significance,”47 which supports a conclusion that the President’s issuance of an emergency declaration for Louisiana on August 27, 2005, put an INS into effect. 

Most importantly, however, regardless of how an INS is defined or whether an INS must be formally declared by the Secretary or not, the NRP fails to articulate clearly which specific actions should be taken and what components should be utilized under the NRP as a result of an INS coming into effect. As a practical matter, many of the NRP’s functions and structures were already being utilized at the time that the Secretary declared an INS.48

Since the NRP was adopted in December 2004, many parts of the Plan had been used to various degrees and magnitudes for thirty declared Stafford Act events to coordinate Federal assistance.49 Yet, an INS had never formally been declared prior to Tuesday, August 30, 2005—during the Hurricane Katrina response. The lack of clarity discussed above caused confusion. The process and the operational consequences of declaring an INS should be further defined and clarified.50

NRP Concept of Operations

When applied together, the components of the NRP should provide for a unified command structure to serve as the local, multi-agency coordination center for the effective and efficient coordination of Federal, State, local, tribal, nongovernmental, and private-sector organizations with primary responsibility for incident-related prevention, response and recovery actions.51 In many cases, this takes place at a Joint Field Office (JFO). The JFO co-locates the Principal Federal Official (PFO) and Federal Coordinating Officer in situations not involving multiple FCOs.52 In HSPD-5, the President designated the Secretary of Homeland Security as the “principal Federal official for domestic incident management.”53 The NRP allows the Secretary to delegate his responsibility, defining a PFO “as the Federal official designated by the Secretary of Homeland Security to act as his/her representative locally to oversee, coordinate, and execute the Secretary’s incident management responsibilities under HSPD-5 for Incidents of National Significance.”54 The FCO, a position created by the Stafford Act, manages Federal resource support activities and is responsible for coordinating the timely delivery of Federal disaster assistance resources to affected State and local governments, individual victims, and the private sector.55 At the regional level, a Regional Response Coordination Center (RRCC) coordinates disaster response activities until a JFO can be established.56

At DHS headquarters, the Homeland Security Operations Center (HSOC) coordinates “incident information-sharing, operational planning, and deployment of Federal resources” together with its component element at the Federal Emergency Management Agency (FEMA) headquarters, the National Response Coordination Center (NRCC), a “multiagency center that provides overall Federal response coordination for Incidents of National Significance and emergency management program implementation.”57 Strategic-level coordination and resolution of resource conflicts unresolved by the NRCC occurs at the Interagency Incident Management Group (IIMG), an interagency body housed at DHS headquarters.58

The coordination of the Federal response—to include capabilities and resources—occurs at the field, regional, and Federal agency headquarters levels through the Emergency Support Function (ESF) framework. ESFs are organized groups of government and private sector entities that provide support, resources, and services. An ESF is staffed by specialists from multiple Federal departments, agencies, and the private sector. The purpose of the ESFs is to integrate skills and capabilities that reside in disparate organizations to coordinate support to State and local response agencies, including both physical resources and staff. The ESFs are structured so that resources and capabilities that are required to assist State and local officials in response and recovery operations can be handled by the appropriate Federal agency. A detailed break-down of each ESF by function and the primary Federal department or agency charged with leading each ESF can be found in Table 2.1.59

Table 2.1 Emergency Support Functions

FEDERAL EMERGENCY MANAGEMENT AGENCY

President Carter created FEMA through a 1978 reorganization plan that merged several elements of the Federal response into one agency.60 In 2003, FEMA became a component of the newly created Department of Homeland Security. Within the Department, FEMA is the primary agency charged with coordinating Federal assistance during disasters.61 Pursuant to its responsibilities under the NRP, FEMA has primary responsibility for emergency response and recovery coordination.62 It maintains the NRCC and, as the Federal government’s chief steward of disaster response, FEMA also continuously monitors for potential disasters and mobilizes resources when it anticipates Federal assistance will be requested. This occurs frequently during the hurricane season.

Figure 1: FEMA Regions

FEMA is not, however, the operational provider of most Federal response support. It is a small organization that primarily manages the operational response, relief, and recovery efforts of the rest of the Federal government. FEMA does not, for instance, provide mass care or transportation after a disaster. Instead, pursuant to the NRP structure, FEMA tasks the Departments of Health and Human Services, Defense, and Transportation, as well as the American Red Cross, to perform these operations. Generally, State and local officials and first responders identify necessary missions and required commodities which FEMA—through its organizational structure, coordination practices, and administrative support—will assign to a Federal department or secure from the private sector. The organization exists primarily to coordinate other Federal agencies and departments during emergency response and recovery—acting as an honest broker between departments and agencies, providing a command structure, and serving as the single point of entry for State and local officials into the Federal government. It does not have its own critical response assets, such as buses, trucks, and ambulances.

The operational teams that FEMA is responsible for administering, such as the Urban Search and Rescue (US&R) teams, are State and local first responders from around the country that volunteer to be activated, deployed, and reimbursed by FEMA for their help during response activities. FEMA enforces standards, certifications, and qualifications for participation in such programs and provides funding for equipment and training.

To handle national needs, FEMA operates ten regional offices and two area offices that work directly with States in planning for disasters, developing mitigation programs, and meeting needs when disasters occur (see Figure 2.1).63 Each of the offices maintains full-time staff who work with Federal, State, and local partners year-round. Additionally, each office can draw upon civilian reservist personnel to support the response when a Presidential major disaster or emergency declaration is issued.64 When State governments request Federal assistance, FEMA deploys personnel to the appropriate regional office and the incident area. Also, the regional office controls the RRCC, from which FEMA coordinates its assistance.65 Because Hurricane Katrina was advancing toward Louisiana (Region VI), and Florida, Mississippi, and Alabama (Region IV), both FEMA regions conducted response and recovery operations.66

Planning a Proactive Federal Response

Under the Stafford Act, requests for major disaster declarations must be made by the Governor of the affected State. The Governor’s request must be based on “a finding that the disaster is of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments and that Federal assistance is necessary.”67 Emergency declarations can be made in the same manner or, in limited circumstances, can be made by the President unilaterally.68

The system for providing Stafford Act assistance, set forth in the NRP and FEMA regulations, reflects the American system of federalism, allocating roles and responsibilities between levels of government by utilizing a layered system that requires local governments to first request assistance from their State. States, in turn, must use their own resources, if available, before requesting Federal assistance. As a prerequisite to major disaster assistance under the Stafford Act, a requesting Governor must “take appropriate response action under State law and direct execution of the State's emergency plan.”69 Similarly, State emergency operations plans are based on this layered system. For example, the State of Louisiana Emergency Operations Plan states that “[t]he initial actions . . . are conducted by local government. Local authorities will exhaust their resources, and then use mutual aid agreements with volunteer groups, the private sector and/or neighboring parishes.”70 When local and State governments require additional resources, they generally call upon neighboring jurisdictions and other States through mutual assistance agreements and through the Emergency Management Assistance Compact (EMAC), a Congressionally ratified agreement71 that provides form and structure to interstate mutual aid, and through which States make available to each other in time of crisis their emergency response assets, such as National Guard troops.72

Traditionally, it is only after local, State, and mutual assistance resources are depleted, or prove insufficient, that the Federal government is requested to help. The Louisiana Emergency Operations Plan further explains that, “State assistance will supplement local efforts and federal assistance will supplement State and local efforts when it is clearly demonstrated that it is beyond local and State capability to cope with the emergency/disaster.”73 Should State and affected local governments become overwhelmed, the President may declare either a major disaster or emergency through his authorities under the Stafford Act.

After a Stafford Act declaration, FEMA, on behalf of the Federal government, receives State requests for assistance and fulfills them by tasking other Federal departments or agencies with the appropriate expertise or resources to meet the specific needs. This is often referred to as a “pull” system for Federal assistance because local and State governments must identify needs and make specific requests for assistance before the Federal government can deliver—they “pull” assistance from the Federal government. Equally important to understanding the current “pull” system is the method in which Federal assistance is delivered to those in need—relying on the State as an intermediary between the Federal government and any other entity. In many cases, the Federal government will satisfy a State request by providing commodities or assets to the State. In so doing, the Federal government is helping the State meet the needs of their local governments and first responders, as well as various operational components of the State. The Federal government does not always directly deliver its assistance to local governments or others in need. The State’s role has been compared to retail sales in terms of organization, delivery, and management. Under this description, the Federal government’s role is comparable to wholesale. This generally works well and should continue in the majority of instances.

However, in some instances the State and local governments will be overwhelmed beyond their ability to satisfy their traditional roles in this system. Indeed, in some instances, State and local governments and responders may become victims themselves, prohibiting their ability to identify, request, receive, or deliver assistance. This is the moment of catastrophic crisis—the moment when 911 calls are no longer answered; the moment when hurricane victims can no longer be timely evacuated or evacuees can no longer find shelter; the moment when police no longer patrol the streets, and the rule of law begins to break down.  

During the development of the NRP, such a catastrophic scenario was considered and planning for such an eventuality began. The NRP includes a Catastrophic Incident Annex which “establishes the context and overarching strategy for implementing and coordinating an accelerated, proactive national response to a catastrophic incident.”74 The intent behind this Annex was to plan for a case in which the Federal response posture would switch, upon a declaration by the Secretary of Homeland Security of a catastrophic incident, from the traditional “pull” system to one that includes a proactive “push” system, moving assets to the affected areas without waiting for State requests. Under the current Catastrophic Incident Annex, however, the general operating presumption is that Federal pre-deployed resources remain at staging areas until requested by the State and local incident command authorities.  Thus, this Annex provides for proactive deployment of resources to the area, but the actual employment of the resources depends to a good degree on requests from State or local authorities and very often their participation in delivering the aid to those in need.

The National Response Plan defines a catastrophic incident as:

Any natural or man-made incident, including terrorism, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the population, infrastructure, environment, economy, national morale, and/or government functions. A catastrophic event could result in sustained national impacts over a prolonged period of time; almost immediately exceeds resources normally available to State, local, tribal, and private sector authorities in the impacted area; and significantly interrupts governmental operations and emergency services to such an extent that national security could be threatened.75

Because it was recognized that a proactive Federal response can create strains on Federal resources and presents practical challenges for Federal responders not familiar with the terrain or infrastructure in a disaster area, the NRP Catastrophic Incident Annex required that a “more detailed and operationally specific NRP Catastrophic Incident Supplement . . . be approved and published independently of the NRP Base Plan and annexes.”76 The Catastrophic Incident Supplement (CIS) is meant to address the “resource and procedural implications of catastrophic events to ensure the rapid and efficient delivery of resources and assets, including special teams, equipment, and supplies that provide critical life-saving support and incident containment capabilities.”77 The draft CIS by its current terms only applies to short notice or no notice events. On August 29, at the time Hurricane Katrina hammered into the Gulf Coast, the draft CIS had not been finalized and promulgated. It began final circulation for approval as part of the regular Federal staffing process shortly after Katrina made landfall.78

Ultimately, when a catastrophic incident occurs, regardless of whether the catastrophe has been a warned or is a surprise event, the Federal government should not rely on the traditional layered approach and instead should proactively provide, or “push,” its capabilities and assistance directly to those in need. When the affected State’s incident response capability is incapacitated and the situation has reached catastrophic proportions, the Federal government alone has the resources and capabilities to respond, restore order, and begin the process of recovery. This is a responsibility that must be more explicitly acknowledged and planned for in the NRP, and we must resource, train, and equip to meet this obligation when such a contingency arises. It is also important that we work with State and local governments to ensure they are better prepared to respond immediately, until Federal resources can arrive.

Moving Forward

Hurricane Katrina was the most destructive natural disaster in U.S. history. However, there is no question that the Nation’s current incident management plans and procedures fell short of what was needed and that improved operational plans could have better mitigated the Hurricane’s tragic effects. As President Bush acknowledged from Jackson Square in New Orleans, “the system, at every level of government, was not well-coordinated, and was overwhelmed in the first few days.”79 A true national preparedness system should ensure that all levels of government effectively work together to keep the American people safe and secure at home.