BPW Foundation's Women Misbehavin' Blog

Well behaved women never make history

The Inadequacy of Our Disaster Laws

Posted by egehl on June 15, 2010

It seems that my state doesn’t experience just any ole disaster.  We knock them out of the ballpark and raise the bar to a completely new level.  Because really, what’s the fun of being like everyone else?  You think you’ve seen disaster, well not until the Gulf Coast comes on the scene because apparently we really love the term “the worst [fill in the blank] in our nation’s history”. Maybe it’s our hidden talent, or perhaps just really bad luck. 

As we reach day 56 of this oil spill–more like gusher–what the country doesn’t realize is that this tragedy will yet again shine a light on the inadequacy of our nation’s laws.  The hardships being endured by the Gulf Coast now, and from the storms of 2005, will change policies that have far reaching implications on how we will react to disasters in the future.  

The lessons learned from Katrina and the oil spill will drastically alter how this nation reacts to future disasters—both environmental and natural incidents— because our catastrophes have busted open any preconceived notion of what a disaster is.  Unfortunately it’s taken the turmoil of two unprecedented events in five years to serve as a wake-up call for how we need to strengthen and improve our disaster response and recovery framework. 

Sadly today’s disaster is reminiscent of the same challenges we faced in 2005 to implement a full and equitable response because we must yet again deal with a law that lacks specifics, and wasn’t created with a disaster of this size and scope in mind.

It has become abundantly clear that the Oil Pollution Act of 1990 (OPA), the overarching federal law since 1990 that has jurisdiction over any oil spill, is insufficient to address the catastrophe currently facing the Gulf Coast.  This law was created following the Exxon Valdez spill in Alaska, which at the time was our nation’s worst environmental disaster, to address oil spills going forward.  However the Gulf Coast has far surpassed the Alaskan threshold created 20 years ago and it’s evident the OPA was not created with today’s disaster in mind.

The OPA is an obscure scheme that lacks specificity around filing claims especially the more complex ones, receiving payments and loans, and who is eligible to file a claim under the OPA (since the ripple effects of the disaster go far beyond victims on the front line).  And the oil spill liability cap in OPA is ridiculously low at $75 million. 

Ironically this is very reminiscent of what we went through with Katrina and the Stafford Act, which is the overarching federal law for traditional natural disasters like hurricanes, floods and tornadoes.  By design the Stafford Act places most of the responsibility on state and local governments to respond, which clearly didn’t work when Katrina happened and the federal government needed to play a much larger role. 

For the second time, the Gulf Coast must come up against another federal law that is not equipped to deal with a mass-scale catastrophe and how to address the complicated needs of an entire region and thousands of people.  To make things even more complicated, because the oil spill is an environmental disaster and falls under the OPA that means the needs associated with a traditional disaster response under the Stafford Act cannot kick in. 

Response to an oil spill stands in marked contrast to the more commonly understood emergency response framework under the Stafford Act for non-oil spill emergencies, and disasters where state and local officials have the authority to take direct actions to protect life and property.  

Under the OPA, a state only has representation to monitor the response to the incident but does not have the authority to independently conduct any response activities.  For example, Louisiana Governor Jindal has made several requests to the federal government for assistance and, while the responses have expressed support, the over-riding message has been that the OPA simply does not authorize the federal government to respond to an oil spill with disaster programs and assistance as does the Stafford Act.

In addition under the OPA, it is the responsible party, such as BP, that has the authority to conduct response and clean-up activities.  Identifying BP as the responsible party differs from the traditional emergency management role.  This non-traditional response framework presents some unique challenges as local governments, accustomed to being the first line of defense in a disaster or emergency, are not being fully incorporated into the response efforts by BP and the Coast Guard. 

The oil spill has not been declared a federal disaster because the OPA doesn’t call for that.  Louisiana has made multiple requests to federal agencies for assistance to implement programs that would ordinarily be triggered in a Stafford Act major disaster declaration.  Unfortunately because this isn’t a Stafford Act related disaster, certain things like crisis counseling and disaster unemployment that would have launched immediately aren’t happening. 

Not that I want another hurricane, but we would have known exactly what to do, who to ask and how the laws work.  We have learned a lot in 5 years yet have had to start over with this environmental disaster.  

Two weeks after the oil rig exploded, Senator Mary Landrieu (D-LA) made plans to hold a press conference to announce the introduction of a Stafford Act reform bill.  This bill has been in the works for 4 years and incorporates many lessons learned from Hurricane Katrina.  How ironic that as we begin to digest the ramifications of a new disaster and the inadequacies of the policies associated with it, the experiences we went through 5 years ago are now coming into light through massive reform to our largest disaster law. 

Like the need to reform the Stafford Act, I predict our current situation will shape future reform of the OPA. 

The benefits this country will gain in how we react to future catastrophes are on the backs of the Gulf Coast.  I hope everyone keeps that in mind as we hopefully never have to go through something like Katrina and the oil spill again.

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