Thanks Bill for another insightful, well-documented post! The law was about what I figured it would be but did not have time to research.
This whole thing raises a question for me. Suppose a politician (say, George Bush or, if you prefer, Kathleen Blanco or Mayor Nagin) actually did their best to do the right thing, but was prevented from doing so by other politicians (for now, never mind the reasons). Would we be able to figure it out and give that person credit? Or are we going to get so sick of the whole mess that we just quote Mercurio and say "A pox on both your houses!" thus presuming that both "sides" are equally to blame? I realize that on a libertarian list, the tendency is there to follow Mercurio. But it seems that intellectual honesty would demand that we acknowledge when a Democrat does something right (or should I say "correctly" since "right" means "left", or something like that). And likewise with a Republican when he (or she) does something right. In the current situation, there is no hard evidence that Kathleen Blanco has prevented the federal government from doing anything. But there are some good indications. There is also some pretty strong testimony from the Red Cross and the Salvation Army that the Blanco administration has blocked delivery of aid to the Superdome and Convention Center. > -----Original Message----- > From: Bill Anderson [mailto:[EMAIL PROTECTED] > Sent: Saturday, September 10, 2005 7:57 PM > To: Liberty Northwest Conference & Newsgroup > Subject: disaster laws and other things > > On Fri, 2005-09-09 at 22:55 -0700, shadow wrote: > > On 09-Sep-05, Frank Gilliland wrote: > > > > > > FG> In order to dispel the rumor (as propogated by a few ignorant > > FG> blow-hards) that Bush's hands are being tied by the governor of > > FG> Louisiana, here are a couple exerpts of US Code that anyone > interested > > FG> in the TRUTH should consider: > > > > > > FG> =========== > > FG> Sec. 5191. Procedure for declaration > > > > FG> (a) Request and declaration > > FG> All requests for a declaration by the President that an > emergency > > FG> exists shall be made by the Governor of the affected State. Such a > > FG> request shall be based on a finding that the situation is of such > > FG> severity and magnitude that effective response is beyond the > > FG> capabilities of the State and the affected local governments and > that > > FG> Federal assistance is necessary. As a part of such request, and as > a > > FG> prerequisite to emergency assistance under this chapter, the > Governor > > FG> shall take appropriate action under State law and direct execution > of > > FG> the State's emergency plan. The Governor shall furnish information > > FG> describing the State and local efforts and resources which have > been > > FG> or will be used to alleviate the emergency,... > > > > Drum roll, please-- > > > > FG> ... and _will define the type and extent_ of Federal aid required. > Based > > FG> upon such Governor's request, the President may declare that an > > FG> emergency exists. > > > > Nuff said. > > > Not quite. > "Any Federal agency charged with the administration of a Federal > assistance program may, if so requested by the applicant State or local > authorities, modify or waive, for a major disaster, such administrative > conditions for assistance as would otherwise prevent the giving of > assistance under such programs if the inability to meet such conditions > is a result of the major disaster." § 5141 > > " > (a) Federal share > The Federal share for assistance provided under this subchapter shall be > equal to not less than 75 percent of the eligible costs. > (b) Limit on amount of assistance > (1) In general > Except as provided in paragraph (2), total assistance provided under > this subchapter for a single emergency shall not exceed $5,000,000. > (2) Additional assistance > The limitation described in paragraph (1) may be exceeded when the > President determines that > (A) continued emergency assistance is immediately required; > (B) there is a continuing and immediate risk to lives, property, public > health or safety; and > (C) necessary assistance will not otherwise be provided on a timely > basis. > (3) Report > Whenever the limitation described in paragraph (1) is exceeded, the > President shall report to the Congress on the nature and extent of > emergency assistance requirements and shall propose additional > legislation if necessary. > " --§ 5193. Amount of assistance > > Here, anything exceeding $5 million requires congressional approval. > Anything done under the rules of 5192 is limited to 5 million dollars. > Also, use of federal personnel and assets is limited to ten days. With > one, possibly two exceptions. The 5 million dollar rule could be worked > around in the case of NO by two declarations: one for the hurricane and > one for the Lake flood that followed it. That would require two > declarations. > > This also explains why the congress has to always get involved. Anything > beyond 5 million per emergency is limited at the federal level to 5 > million dollars. > > The Coast Guard is specifically for this purpose. Explicitly so. Indeed, > the CG is exempt from the Posse Commitatus Act. The Navy and Marines are > generally considered exempt but the DoD has determined that they should > be treated just as the Army and Air Force are. And no, the CG is not > DoD. > > > FUrther pursuant to 5191 "As a part of such request, and as a > prerequisite to emergency assistance under this chapter, the Governor > shall take appropriate action under State law and direct execution of > the States emergency plan." the Governor has prerequisites to meet > before the federal can initiate action. This is for *any* action > provided for by Chapter 68. > > Pursuant to 5192(b) "for which the primary responsibility for response > rests with the United States because the emergency involves a subject > area for which, under the Constitution or laws of the United States, the > United States exercises exclusive or preeminent responsibility and > authority." this section only applies to areas of primary federal > responsibility. These include only territories, possessions, and areas > maintained by the federal government. Such areas are insular areas and > military installations. New Orleans, the State of Louisiana, and the > Parishes around New Orleans are not areas of federal primary authority. > > > "The Federal Government shall not be liable for any claim based upon the > exercise or performance of or the failure to exercise or perform a > discretionary function or duty on the part of a Federal agency or an > employee of the Federal Government in carrying out the provisions of > this chapter." -- § 5148. Nonliability of Federal Government > > This is not suprising given the purpose of Chapter 68. THis chapter is > NOT designed to have the fedgov control disaster response and relief. > The intent of the chapter is listed here: > http://www4.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00005121---- > 000-.html > (the government link is incomplete in that several pages come up as > errors) > > > In a standard shobby work, FrankG fails to follow the regulations. THe > aforementioned sections establish that the federal officer in charge > shall be the head of FEMA. This means that all limitations that apply to > FEMA and it's director are in full effect. This is important given the > vast legislation on FEMA. FrankG fails to delve into this body of > legislation. > > http://a257.g.akamaitech.net/7/257/2422/12feb20041500/edocket.access.gpo.g > ov/cfr_2004/octqtr/44cfr206.5.htm > http://a257.g.akamaitech.net/7/257/2422/12feb20041500/edocket.access.gpo.g > ov/cfr_2004/octqtr/44cfr206.32.htm > > These are but a couple of the statues that clearly demand a standing > agreement for how things are to be done between the state and FEMA. They > also stipulate that the Governor or Governor's Appointed Representative > (GAR) have to make specific requests for any exceeding of administrative > limitations. > "(d) FEMA-State Agreement: A formal legal document stating the > understandings, commitments, and binding conditions for assistance > applicable as the result of the major disaster or emergency declared by > the President." > > http://a257.g.akamaitech.net/7/257/2422/12feb20041500/edocket.access.gpo.g > ov/cfr_2004/octqtr/44cfr206.33.htm > > This one covers the PDA or Preliminary Damage Assessment that is > required prior to any FEMA response. Note that even in para. (d) the > State is still required to be primary for unmet needs. In other words, > the State must tell FEMA what they can not do and request that for > assistance. > > http://a257.g.akamaitech.net/7/257/2422/12feb20041500/edocket.access.gpo.g > ov/cfr_2004/octqtr/44cfr206.34.htm > This one cvers requests for DoD resources. Note that this is limited to > the aftermath. The State is not permitted to request these assets in > advance. This is why the NG is the forefront in natural disasters > locally. They are specifically under control of the State and thus do > not fall under this limitation. Any failure of response for NG is the > responsibility/fault/cause of the State and it's NG apparatus. > > If the President activates the NG they become federal troops under > management of the DOD and thus subject to federal DoD limitations listed > here and under the Posse Commitatus Act. SO no, you can't let the fedgov > take over the NG to get around these limitations. > > When it comes to DoD assets, this section clearly establishes the State > apparatus as a potential and defined bottleneck. > > Further: > http://a257.g.akamaitech.net/7/257/2422/12feb20041500/edocket.access.gpo.g > ov/cfr_2004/octqtr/44cfr206.44.htm > > To quote: > """ > General. Upon the declaration of a major disaster or an > emergency, the Governor, acting for the State, and the FEMA Regional > Director or his/her designee, acting for the Federal Government, shall > execute a FEMA-State Agreement. The FEMA-State Agreement states the > understandings, commitments, and conditions for assistance under which > FEMA disaster assistance shall be provided. This Agreement imposes > binding obligations on FEMA, States, their local governments, and > private nonprofit organizations within the States in the form of > conditions for assistance which are legally enforceable. No FEMA funding > will be authorized or provided to any grantees or other recipients, nor > will direct Federal assistance be authorized by mission assignment, > until such time as this Agreement for the Presidential declaration has > been signed, except where it is deemed necessary by the Regional > Director to begin the process of providing essential emergency services > or housing assistance under the Individuals and Households Program. > """ > > > Part of the FEMA-State agreement is who will control/direct/handle what. > > As part of the declaration of emergency process the President is limited > thusly: > "Sec. 206.38 Presidential determination. > > (a) The Governor's request for a major disaster declaration may > result in either a Presidential declaration of a major disaster or an > emergency, or denial of the Governor's request. > (b) The Governor's request for an emergency declaration may result > only in a Presidential declaration of an emergency, or denial of the > Governor's request. > " > http://a257.g.akamaitech.net/7/257/2422/12feb20041500/edocket.access.gpo.g > ov/cfr_2004/octqtr/44cfr206.38.htm > > > > Here again we see that the Presidential declaration of an SoE is solely > the agreement that a SoE exists. It provides no further authority to the > President or FEMA. > > FEMA's primary arm of natural disaster response consists of: > "with their consent, the personnel and facilities of the American > National Red Cross, the Salvation Army, the Mennonite Disaster Service, > and other voluntary organizations in the distribution of medicine, food, > supplies, or other items, and in the restoration, rehabilitation, or > reconstruction of community services and essential facilities, whenever > the FCO or Regional Director finds that such utilization is necessary." > -- (Title 44 Chapter I part 206 Subpart A Sec 206.12) > > Note that this is specifically under section 206 -- dealing with natural > disasters. > > For those wondering "what if it were a nuclear attack", well that is > actually the primary statutory role of the DoHS based on the legislation > creating it. Most of the Acts are centered around nuclear attack. Had > this been a nuclear attack the federal would have had no requirement to > get approval for any response. > > This is again because natural disaster response is an area of State > primacy. > > > Whether you agree with the laws is irrelevant they are in place. It is > one of the reasons the Federal response will ALWAYS be limited in a > federal/state system. It is one reason the sheer size of the federal > government is detrimental to the country. There will ALWAYS be > disagreement between state and federal abut disaster response needs and > there will always be communication and information latencies. It is > unavoidable. > > These are primary reasons why the State and further down the local > agencies do and should bear primary responsibility for such response AND > preparedness. It is quite possible that without all the red tape of > intergovernmental requirements and federal hogging of resources that > the State of Louisiana, not to mention private sector interests, could > well have and likely would have had better protection and response. > > Yet again, I wonder why it is we are all so paranoid over a greater than > 99% survivability rate. > > Here is a thought to munch on. The Ports in Louisiana processed > approximately 1.3-1.5 million barrels of oil per day. If the Port > Authority (which need not be a government entity) charged a fee of one > dollar per barrel equivalent the oil alone would have provided in the > neighborhood of 500 million dollars per year. This could provide for a > lot of mitigation and response efforts. One area in which the private > sector can do this better. > > If for the past decade a local "Port Authority" had been established > that had been collecting this how much could have been available for > better storm protection and recovery systems, without the inherent > bureaucracy of the federal government? Somewhere in the neighborhood of > 5 billion dollars. Even assuming that 25% went to administration and > other projects, that is still a damned lot of money. It is as much or > more than was spent by the government over that timeframe. > > You know, even if the state or local government had imposed this as a > tax or such it would have been better. Instead the State and morons want > to blame the congress/president (whichever your party does not control) > for funding woes. Our continued reliance on federal government has once > again bit us on the arse. > > Even if the federal efforts were left alone, half a billion dollars a > year could go to disaster relief funds, emergency services, etc.. Even > if we let the fedgov "manage" the levee system, that kind of money could > have gone to the establishment of standard well known shelters for > hurricanes. Those of us around during the height of the cold war likely > remember the bomb shelters and their widespread advertisement. A similar > arrangement of storm shelters could have been (and could be) put into > place using this funding. > > It is a given that 100% evacuation is not realistic. That we got as many > evacuated as we did is amazing. There are limits to how many you can > evacuated given short notice regardless of your plan and how well you > implement it. Not everyone watches TV or listens to local radio. > Establishing shelters and response preparedness for those who can not or > do not get out is the only way to reliably improve on the already > greater than 99% survivability rate. Had the levees been built to a > Cat-5 they likely would have only been 20-25 feet high. Given that the > waters from the lake is what caused the flooding these would not have > stopped a 40 foot wall of water flooding into the lake, the accompanying > rain, and the resulting wall of water flooding out from the lake. > > Remember, Cat5 storm surge is 19+ feet. We apparently had a storm surge > some 30+ feet, and estimates in some areas based on water marks exceed > 40 feet. > > Thus it was and is folly to rely on levees. Indeed, as in many areas of > life defense in depth is the only sane defense. The city of NO failed on > the last account horribly, IMO. > > And I've only covered oil. The coffee, the natural gas, etc. could all > be tapped in this regard. IMO this is the right way to do it. Running > ports and the costs of the area the port is in should be reflected in > the cost of the goods moved through there. To do otherwise is to > artificially suppress the cost and price of said goods. Overall the cost > to the end user would be less. After all, crude prices can and > frequently do vary by a few dollars over the course of a few hours. > > Similar activities should be considered for the other deep water ports. > If they have not already done so, Houston, Galveston, and Miami (to name > a few) should seriously consider these things. > > What if this port fee was considered too much by the companies paying > it? They could go elsewhere. Other ports may well not have these costs. > If the cost to ship to those ports is less then by all means they should > do that. > > Thoughts? > > Cheers, > Bill > > > > > > -- > Random Fortune of the moment: > Good government never depends upon laws, but upon the personal qualities > of > those who govern. The machinery of government is always subordinate to > the > will of those who administer that machinery. The most important element > of > government, therefore, is the method of choosing leaders. > -- Frank Herbert, "Children of Dune" > > > _______________________________________________ > Libnw mailing list > Libnw@immosys.com > List info and subscriber options: > http://immosys.com/mailman/listinfo/libnw > Archives: http://immosys.com/mailman//pipermail/libnw _______________________________________________ Libnw mailing list Libnw@immosys.com List info and subscriber options: http://immosys.com/mailman/listinfo/libnw Archives: http://immosys.com/mailman//pipermail/libnw
