Congressional Research Service The Library of Congress

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Prudence Preston
6 years ago
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1 Congessional Reseach Sevice The Libay of Congess t! Tbis coutesy ot Tbe Vacation Lane GoUP Washington, D.C Febuay 7, 1989 TO FROM SUBJECT Hon. Edwad J. Makey Attention: Cathy Huwit Ameican Law Division Whethe the Fedeal Emegency Management Agency May Assume "Command and Contol Functions" in the Event of a Nuclea Incident, as Povided fo in Executive Ode You have asked, though Ms. Huwit of you staff, fo analysis of the issue captioned above. Executive Ode , titled "Fedeal Emegency Management Agency [FEMA] Assistance in Emegency Planning at Commecial Nuclea Powe Plants," applies wheneve state o local', govenments fail to (a) pepae emegency pepaedness plans fo dealing with incidents at commecial nuclea poweplants that meet Nuclea Regulatoy Commission licensing equiements, o (b) paticipate adequately in the execise o use of such plans. It is widely undestood that the Ode was pomoted by efusals of state and/o local govenments to paticipate in such planning in connection with the Shoeham nuclea plant on Long Island, New Yok, and the Seabook nuclea plant in New Hampshie. Section 5 of the Ode, titled "Response to a Radiological Emegency," contains among its povisions subsection (c), as follows: (c) FEMA shall assume any necessay command-and-contol function, o delegate such function to anothe Fedeal agency, in the event that no competent State and local authoity is available to pefom such function. Though "command and contol" is not defined, it has been geneally taken to include police-type powe to diect movement of pesons and taffic and othewise contol evacuations and maintain ode, backed by coecive authoity. The issue hee is whethe any fedeal statute authoizes FEMA pesonnel to assume such powe. Based on the following, it would appea that the two statutes most likely to vest the equisite authoity -- the Fedeal Civil Defense Act of 1950 and the Disaste Relief and Emegency Assistance Act -- do not do so Fed. Reg (Nov. 23, 1988) (signed Nov. 18, 1988).

2 CRS-2 Fedeal Civil Defense Act of 1950 coutesy of The Vacation Lane Goup statute 2 oiginated as a cold-wa statute focussed on dealing with nuclea attack. Its pupose was expanded, howeve, in 1981 to include civil defense necessitated by "natual disastes" as wells -- "natual disastes" being defined to include "manmade catastophes."4 Hence, thee is little doubt that the Act is boad enough to each civilian nuclea poweplant accidents, and the only issue is whethe it gants FEMA command-and-contol powe to deal with same in the event of state o local ecalcitance. Despite the existence of sound aguments cutting both ways, the aguments against the Civil Defense Act's ganting such authoity appea the stonge. Fist, the statute itself nowhee states such authoity. To be sue, the Act declaes that "the esponsibility fo civil defense shall be vested jointly in the Fedeal Govenment and the seveal States" and futhe that "[t]he Fedeal Govenment shall povide necessay diection, coodination, and guidance tl6 It is impobable, howeve, that an authoity as adical as fedeal command and contol of local activity, an intusive powe affecting the. fedeal-state balance, would have been conveyed by Congess so tesely and obliquely. Any doubts on this issue ae counteed by legislative histoy. The House epot fom 1950 assets that the fedeal ole is solely -- coodination and guidance of the civil defense pogam; the opeation of the Fedeal Civil Defense Administation [FCDA]; and the poviding of financial and othe assistance. 6 The lengthy floo debates fom 1950 ae in accod. Nowhee is any police function noted fo pesonnel of the FCDA, FEMA's pedecesso, a fact that agues stongly fo the absence of such authoity. Noted one Senato U.S.C. App ( expied 1974) U.S.C. App U.S.C. App. 2252(b)., U.S.C. App (emphasis added). See also 50 U.S.C. App. 2281(a), stating that the Administato of the Fedeal Civil Defense Administation shall "pepae national plans... fo civil defense" and "sponso and diect" such plans. (Emphasis added.) 6 H.R. Rep. No. 3209, 81st Cong., 2d Sess., epinted at 1950 U.S. Code Congo & Ad. News 4328, 4335.

3 CRS-3 coutesy of The Vacation Lane Goup [t]he bill makes no povision fo fedeally oganized aid battalions which could move into aeas so badly sticken that the State concened and the neighboing States could not meet the emegency. 7 Anothe Senato chaacteized the "philosophy" of the bill as "simply to make the Govenment of the United States a guiding authoity to aid the States in the pimay job of civil defense."s "It is the.., city and the State," asseted yet anothe, "though which the poblem [of civil defense] must be handled."9 Likewise, when the bill's ceation of a United States Civil Defense Cops was debated in the House, cae was taken to claify the minimal fedeal ole. "The Cops," declaed one Membe's inseted comments, "is designed to be established and opeated on a local level unde the diection of the State."IO Significantly, these congessional expessions favoing a dominant state and local ole in implementing civil defense plans occued at a time when the Act contained the "Emegency Authoity" of Title III, which povided limited authoity fo the United States to act at the local level in an emegency. Title III was allowed to expie on June 30, and has not been e-enacted. since. It would be anomalous, then, if the cuent Act, lacking emegency povisions, wee to be ead as authoizing FEMA command and contol, while the fome Act, containing emegency povisions, seems not to so authoize. In 1958, amendments to the Fedeal Civil Defense Act put the allocation of fedeal and state esponsibility unde the Act squaely in issue. Though clealy tipping the scales futhe towads the fedeal govenment, the amendments stopped shot of confeing command-and-contol powes on the FCDA. Stated the FCDA in a lette to the Speake of the House: The question of the appopiate division of esponsibility fo the Nation's civil defense has been thooughly studied The majoity of the ecommendations esulting fom 7 96 Congo Rec (Dec. 22, 1950) (emaks of Sen. McMahon). S 96 Congo Rec (Dec. 22, 1950) (emaks of Sen. Codon) (emphasis added). " 9 96 Congo Rec (Dec. 22, 1950) (emaks of Sen. Kefauve) Congo Rec (Dec. 20, 1950) (inseted by Congo Duham). II Section 307 of the Act, 50 U.S.C. App. 2297, as amended, povided that Title III teminated on June 30, 1974, o on such ealie date as pescibed by concuent esolution of the Congess.

4 CRS-4 coutesy of The Vacation Lane Goup such studies uge that civil defense be made pimaily a Fedeal esponsibility. Howeve, the [FCDA] consides State and local effots of such vital impotance... that the bette couse is to amend section 2 of the act to declae civil defense to be the joint esponsibility of the Fedeal Govenment and the States... Unde such joint esponsibility the Fedeal Govenment, while exeting positive leadeship, can popely execise its patneship ole by encouaging and equiing the maximum civil-defense effot on the pat of the States It appeas that owing to its planning and pepaedness povisions, the Civil Defense Act does authoize FEMA to conduct execises of adiological emegency plans at nuclea poweplants. Notwithstanding, the foegoing discussion suggests that the Act does not empowe FEMA to pefom command-and-contol functions off-site. 13 Disaste Relief and Emegency Assistance Act Act, amended and enamed in 1988,14 specifies a boad aay of fedeal assistance fo state planning, esponse, and ecovey in connection with an "emegency" o "majo disaste," and futhe authoizes the Pesident to establish a pogam of disaste pepaedness fo fedeal agencies. Howeve, even unde the ecent amendments, designed to "povide fo moe effective assistance in esponding to majo disastes and emegencies," thee ae seveal obstacles to invoking the DREAA as authoity fo FEMA command-andcontol. Fist, the availability of DREAA elief assistance is contingent on the occuence of eithe an "emegency" o a "majo disaste."16 Though both tems wee boadened unde the 1988 amendments, only "emegency" now 12 Lette fom M. Val Peteson (FCDA) to Hon. Sam Raybun, dated Feb. 8, 1957, appended to Sen. Rep. No. 1831, 85th Cong., 2d Sess., epinted in 1958 U.S. Code Congo & Ad. News 3311, In eaching this conclusion, we ae in ageement with an Octobe 30, 1985 memoandum fom the Acting Geneal Counsel fo FEMA. 14 Title I of Public Law , enacted Novembe 23, 1988, substantially ewote the Disaste Relief Act of 1974, changing its name in the pocess to "The Robet T. Staffod Disaste Relief and Emegency Assistance Act." 16 DREAA 401, 501.

5 CRS-5 t!. coutesy of The Vacation Lane Goup appeas to potentially embace all nuclea poweplant accidents. 16 The new definition of "majo disaste" does not seem to cove nuclea poweplant incidents unless a "fie, flood, o explosion" occus which, we undestand, is not geneally the case. is a significant obstacle in that if the DREAA contains command-and-contol authoity at all, it most likely would be found in the statute's moe extensive assistance povisions fo "majo disastes."18 Secondly, the DREAA comes into play only when the Goveno of the affected state equests fedeal assistance. 19 One might suppose that this pecondition undecuts the value of the Act as authoity fo fedeal police action unde the Ode, since the Ode applies only when state o local govenments ae esistant to emegency planning o choose not to paticipate in the implementation of the adopted plan. On the othe hand, thee is compelling counte-agument that the state, faced with an actual cisis, might equest fedeal aid notwithstanding its histoical opposition to the nuclea plant giving ise to the cisis. And thee is the possibility that the Goveno of a state might favo fedeal intevention despite local efusal to paticipate adequately in plan implementation. 16 "Emegency," in the amended statute, means -- any occasion o instance fo which, in the detemination of the Pesident, Fedeal assistance is needed to supplement State and local effots and capabilities to save lives and to potect popety and public health and safety, o to lessen o avet the theat of a catastophe in any pat of the United States. DREAA 102(1). Unlike its foebea, the new definition appeas not to be limited to natually occuing emegencies. 17 "Majo disaste," in the amended statute, means -- any natual catastophe (including any huicane, tonado, stom, high wate, winddiven wate, tidal wave, tsunami, eathquake, volcanic euption, landslide, mudslide, snowstom, o dought), o, egadless of cause, any fie, flood, o explosion, in any pat of the United States which in the detemination of the Pesident causes damage of sufficient seveity and magnitude to waant majo disaste assistance unde this Act to supplement the effots and available esouces of States, local govenments, and disaste elief oganizations... DREAA 102(2) (emphasis added). 18 See note 20 infa. 19 DREAA 401 (equest fo majo disaste declaation) and 501 (equest fo emegency declaation).

6 CRS-6 coutesy of The Vacation Lane Goup Finally, given that the foegoing obstacles ae sumounted and the DREAA does apply, the Act's textual suppot fo FEMA command and contol is thin. Nowhee does the Act clealy indicate that authoity of this natue is being confeed on any fedeal agency. Both DREAA and its legislative histoy speak solely in tems of fedeal aid, fedeal assistance, fedeal mateiel, and fedeal sevices duing emegencies and majo disastes -- not fedeal police action. And to eiteate, the boade fedeal authoities eseved fo majo disastes 20 may not even be applicable hee due to definitional constaints noted above. In sum, the "majo disaste" povisions of DREAA may not apply to nuclea poweplant incidents not involving fie, flood, o explosion, and the Act is contingent on equest fo assistance by a state Goveno. To the extent the Act does apply and the Goveno equests fedeal aid, it appeas not to confe any command-and-contol powes on FEMA. I "- Robet Meltz Legislative Attoney 20 An example is DREAA 403(a), poviding that - Fedeal agencies may on the diection of the Pesident, povide assistance essential to meeting immediate theats to life and popety esulting fom a majo disaste, as follows: (3) Pefoming on public o pivate lands o wates any wok o sevices essential to saving lives and potecting and peseving popety o public health and safety, including -- " (I) eduction of immediate theats to life, popety, and public health and safety.

The Constitutional Convention

The Constitutional Convention The Public Good "To secue the public good and pivate ights against a dange of such faction, and at the same ~,- time to peseve the spiit and the fom of popula govenment, is then the geat object to which