January 2008

Are You Prepared? Lawyers' Roles in Preparing for and Responding to Disasters

by Joseph V. Panesko

The field of emergency management has blossomed after the terrorist attacks of 9/11, and even more so after the twin natural disasters of Hurricanes Katrina and Rita.  Washington state faces its own unique set of potential natural disasters. Many areas were hard hit by flooding this past December, earthquakes occur without warning, and the Cascades are studded with active volcanoes. Emergency preparedness efforts have similarly increased on the public health arena, as fueled by the spread of the H5N1 strain of avian influenza and the increased concern by public health officials that this particular virus could mutate into a deadly strain that triggers a global pandemic.1 As the emergency management field has grown over the last several years, it has developed a philosophy of preparedness that can benefit all individuals.

The philosophy of governmental emergency management rests upon four pillars: prevention, preparedness, response, and recovery.2 Emergency management guidance also emphasizes "all-hazards planning."3 Instead of choosing one particular kind of disaster and preparing for that specific event, emergency managers take a broader focus of guarding critical public services from any kind of event that could befall them. This approach to emergency preparedness can offer guidance to all citizens and businesses, including attorneys and their firms, in how to plan for and protect ourselves against any kind of disaster, whether caused by terrorists or Mother Nature.

Focusing on the Target

Before emergency managers can take any meaningful steps, they must first identify and assess the threats for which to prepare. This assessment process is called the "Hazard Identification and Vulnerability Assessment" (HIVA).4 Managers must identify the natural and human-caused hazards that could occur within their jurisdictions. They then determine the likelihood of those events occurring (risk), and the damage that those events could cause (vulnerability). The HIVA process allows emergency managers to "rate the risk, determine vulnerability, and predict the adverse impact of disasters and emergencies."5 As an example of the HIVA process, one can determine the likelihood of a tsunami occurring along a particular coastal community by looking at the pattern of historic tsunamis in that location as revealed through geological analysis. One can determine the potential damage a tsunami could cause to a particular community by looking at factors such as the elevation of land and the type of building construction.

Prevention

The HIVA process enables emergency managers to prioritize their prevention efforts. The concept of prevention involves minimizing the vulnerability of critical public services to damage from hazards. Prevention steps can include identifying and removing weaknesses from the infrastructure, or else fortifying those weaknesses that cannot be removed. Another prevention step could be to build redundancies into the critical systems. Emergency-management literature often calls these kinds of prevention steps "mitigation."6

The hazards identification and vulnerability assessment can be utilized by individual homeowners to implement effective prevention steps. Wildfires constitute potential hazards in rural areas. A landowner building a home in a rural area should identify the wildfire hazard, recognize the high risk of wildfires occurring, and realize that cedar shingles present a higher vulnerability than a metal roof. Builders could use this analysis to recommend particular building materials and implement other mitigation measures, such as removing trees and bushes from around the immediate outside of a home.

Businesses can also rely upon the HIVA process to identify prevention steps. A business that relies heavily upon electronic data would identify a power outage as a particular hazard and take steps to fortify the networks and create redundant off-site backup copies of the data.

Preparedness

Preparedness activities build off of the HIVA process and prevention efforts. Although mitigation projects recommended by the HIVA process can minimize the damage caused by a disaster, not all vulnerabilities of critical infrastructure can be completely removed. In other words, one must concede that disasters will continue to occur, and they will continue to inflict damage on our society. Preparedness for emergency responders focuses on being ready to respond to disasters with the goals of protecting life and property, and containing the damages as best as possible.

From the perspective of emergency management, preparedness involves anticipating the disasters likely to occur in the region, planning the elements of the anticipated response to the event, training the individuals responsible for carrying out the plan, and conducting regular exercises to ensure that both individuals and equipment function as planned. Emergency managers in the public sector have developed written plans detailing the roles and responsibilities of all emergency responders. On the national level, the federal government relies upon the National Response Plan (NRP), which lays out the "structure and mechanisms for national level policy and operational direction for Federal support to State and local incident managers" during a disaster.7 In Washington state, state agencies are guided by the Comprehensive Emergency Management Plan (CEMP).8 Both the NRP and CEMP divide emergency response components into 15 different "emergency support functions," or ESFs.9 The ESFs include areas such as transportation, communications systems, public works and engineering, firefighting, public health, and public safety. On the state level, the CEMP assigns various state agencies to each of the ESFs, and those agencies are responsible for being prepared to serve the needs of that function in the time of a disaster. ESF functions are normally deployed when those resources are requested by a local jurisdiction that has been overwhelmed by an event.

Individuals and families can create similar preparedness plans. A family can identify suitable evacuation routes from their home in case of a fire, identify a common meeting place outside the home, establish an evacuation plan, and rehearse that plan. Each family member could have assigned tasks, such as one member being responsible for locating and retrieving the family pet. All these steps constitute reasonable steps of preparedness.

Past disasters have shown that divergent government agencies can have difficulties joining together to present a unified emergency response. In response, the Federal Government has adopted the National Incident Management System (NIMS).10 This system sets out a template for the "incident command system," or ICS, and all levels of government emergency responders, whether local, state or federal, are required to implement the ICS template into their operational structures to qualify for numerous Homeland Security grants. The imposition of this federally mandated template ensures that all levels and all components of governmental emergency responders utilize the same command structure and terminology so that they can integrate and work together seamlessly during a disaster. As a result, NIMS and ICS are integral components of all emergency response agencies' preparedness plans.

Another significant component of emergency preparedness for governmental entities involves the use of mutual aid agreements. When a large disaster occurs, local government emergency responders may be overwhelmed. The Washington State Legislature has encouraged local emergency managers to enter into mutual aid agreements with other local jurisdictions so that, in the case of a disaster, jurisdictions not as severely impacted can lend their extra resources to the jurisdiction at the epicenter of the event.11 If a local jurisdiction has exhausted its own resources and also exhausted resources available through local mutual aid agreements, then that jurisdiction can turn to the state and request state assistance. If the state's resources get overwhelmed in responding to an event, the state can then turn to a nationally implemented state-to-state mutual aid agreement called the Emergency Management Assistance Compact (EMAC) to obtain the assistance from other states.12 During Hurricanes Katrina and Rita, more than 65,000 personnel and massive amounts of equipment were sent from other states to the Gulf states through EMAC.13

Washington state has also joined an international mutual aid agreement called the Pacific Northwest Emergency Management Arrangement (PNEMA), which has been signed by Alaska, Idaho, Oregon, British Columbia, and the Yukon Territory.

To avoid the common saying of best-laid plans going awry, the Washington State Emergency Management Division offers numerous classes and seminars for state and local emergency response officials.14 Online training opportunities also exist on both the state and federal levels.15 The Emergency Management Division also conducts numerous tabletop exercises, drills, and full-scale exercises with participating federal, state, and local agencies in order to make sure that all emergency responders learn and rehearse their assigned responsibilities. Large exercises involve multiple state and local governmental agencies so that these diverse entities, which may not normally work together in carrying out their routine daily functions, can test their ability to integrate their efforts.

State and local emergency managers also include private enterprises and non-governmental organizations (NGOs) within the scope of their planning, training, and exercises. Much of the critical infrastructure that society relies upon (including, but not limited to, power, natural gas, and telecommunications) is operated by non-governmental or quasi-governmental entities. Those entities have a critical role in the planning process, because their ability to recover their services directly impacts government responders and all citizens. In a similar fashion, emergency managers recognize that NGOs can contribute significant resources to disaster response. For example, the American Red Cross is specifically called out as having numerous support roles in both the National Response Plan and the Washington State Comprehensive Emergency Management Plan.

Response and Recovery

In the best of worlds, emergency managers simply implement and follow their existing emergency response plans after a disaster. Every situation, however, involves unforeseen contingencies. In order for emergency managers to adapt and respond adequately, they must have access to timely and accurate information about the status of the situation. All agencies working on the response must communicate and coordinate effectively. The initial focus in any disaster response will be preserving life and minimizing damage to property, as well as continuing essential services.

One of the most significant challenges during a large-scale disaster involves the ability of the multiple entities involved to communicate with each other. If the various agencies with response roles do not have interoperable communications systems, they cannot coordinate response efforts or share a common operating picture.

As the immediacy of the disaster passes and the immediate risks ebb, responders slowly transition to a recovery stance that includes both short-term and long-term recovery goals. Points of concern for recovery include addressing critical infrastructure and key resources necessary for society to function, addressing the long-term health and safety of the citizens, addressing the environmental and economic impact of the disaster, and restoring the systems necessary to return governmental and private services to their normal levels. Effective recovery efforts require a deep understanding of the interconnectedness of critical infrastructure. Resources are typically sparse in the aftermath of a disaster, and recovery planners must prioritize the application of those resources to maximize the recovery efforts.

What Do Attorneys Have to Do With Emergency Response?

Public Attorneys

When one imagines the ranks of first responders arriving at the scene of a disaster, one may think about firefighters, police, and emergency medical technicians. If the disaster spans multiple counties and overwhelms local responders, one may see numerous state agencies and National Guard units assisting. Depending on the type of disaster, employees from other public and private sectors may respond as well, such as road repair crews from the Washington State Department of Transportation, repair crews from power and water utilities, and local or state public health officials.

Citizens asked about emergency responders may not typically envision an active role for public-sector attorneys who represent any of the governmental entities involved in the response. Whenever a large-scale disaster spans multiple governmental jurisdictions, tests the limits of the first responders, or casts civil order into disarray, legal counsel can play an invaluable role to the executive branch of government in charge of the emergency response. The following list provides just a sampling of the legal issues that can arise:

• who determines the circumstances under which mass evacuations can be ordered and the conditions required for an evacuation;
• the restrictions a governor can impose on public access to residential areas and disaster sites;
• curfew provisions and the conditions required to impose them;
• the range of public health powers available to control contamination and to permit destruction of private property that may constitute a potential hazard, and the compensation obligations that are required of government;
• gubernatorial authority to impose protections and controls for access to critical infrastructure;
• gubernatorial access to various types of intelligence information from other levels of government;
• the scope of existing joint-powers agreements with other governmental bodies;
• the command structure for emergency management and the governor's role in that structure;
• the parameters for sharing intelligence and disaster information with the news media;
• the applicability of freedom of information and open meeting laws during a crisis;
• the authority to exceed appropriations and disregard set budgets during an emergency;
• the applicability of personnel rules during a disaster;
• the circumstances under which emergency appointments are permitted;
• the extent to which liability rules apply to the state during a disaster; and
• laws that are subject to suspension during times of emergency.16

The more that public attorneys are involved with prevention and preparedness efforts of their client agencies, the more likely they will be better prepared to provide prompt answers to these hard-hitting legal questions when government responders are fully engaged in the midst of a disaster.

Private Attorneys

Just as emergency responders and government leaders need legal advice to help respond to the unique situations in the midst of a disaster, private attorneys play an equally important role in advising their clients who are struggling to survive the harsh impacts of the disaster. Before attorneys can serve their profession, however, they should first ensure that they are personally prepared to face the impacts of a disaster. All individuals should have disaster plans that account for provision of food, clothing, shelter, and finances, to name just a few. Numerous resources are available on the Internet providing recommendations on how individuals and families can prepare themselves to weather the adverse impacts of a disaster.17 An attorney who does not have an adequate personal preparedness plan may be prevented from devoting any time to clients. Law firms can take steps to maximize their employees' self-preparedness, thereby increasing the chances of those employees being more able to work after a disaster. A firm could go to the extent of making provisions for alternative housing, schools, and counseling for employees.18

Law firms, whether solo practices or the larger firms in the state, must also deal with the impacts of the disaster on their internal business structure before being able to serve clients. Besides needing personnel to do the work, offices must also contend with issues regarding facilities, finances, communications, computer networks, and data access. It is critical that a firm engage in business-continuity planning so that it is better prepared to weather the impacts of a disaster. A firm conducting business-continuity planning would first identify the essential services that the firm desires to sustain even in the face of a disaster, and then identify the critical resources necessary to provide those essential services. Extensive resources regarding business-continuity planning can be found on the Internet. One of the more comprehensive guides in this respect is the National Fire Protection Association (NFPA) Standard 1600, "Standard on Disaster/Emergency Management and Business Continuity Programs."19

Law firms can engage in further preparedness efforts beyond business-continuity planning by anticipating the kinds of legal issues that are likely to face the firms' clients at the time of a disaster. First, clients will face the same kinds of business-continuity challenges as law firms. They may need legal advice addressing the fundamental needs of personnel, facilities, finances, and equipment. Second, clients impacted by disasters may face numerous tort and contract issues. Third, clients will likely need legal assistance in addressing insurance issues. Fourth, many clients could have direct interactions with governmental emergency responders, and a number of those interactions could give rise to legal issues. Finally, clients may need legal assistance in determining the availability of federal reimbursement or aid in the aftermath of a disaster. Law firms that anticipate these issues and develop expertise in these areas may be in high demand after a disaster. The lawyer's ability to provide these services may assist both the community and the law firm in recovery and restoration efforts.

Conclusion

By emulating the planning and preparedness efforts of emergency managers, attorneys can strengthen their personal and professional resistance to the adverse impacts of disasters. By having a deeper understanding of the governmental emergency response philosophy and structure, private attorneys can themselves be better prepared and able to serve their clients suffering the impacts of a disaster. The availability of emergency legal services in the time of a disaster can help both the public and the private sectors better endure and survive the impacts of those inevitable natural disasters that occur in the Pacific Northwest. 

Business Disaster Planning Resources

Pacific Northwest Economic Region's Center for Regional Disaster Resilience: www.regionalresilience.org/

American Bar Association website: abanet.org (run separate searches for "disaster planning," "disaster checklist," and "continuity" to find available resources)

FEMA website: www.fema.gov/ (search for "continuity")

www.ready.gov/ (national website on continuity planning)

www.3days3ways.org/ (Pacific Northwest regional website hosted by King County focusing on personal preparedness)

Joe Panesko, an assistant attorney general, spends part of his assignment working on emergency preparedness issues for the Attorney General's Office. He can be reached at joep@atg.wa.gov. Prior to joining the AGO, he worked for the Thurston County Prosecuting Attorney's Office. He started his legal career after graduating from Columbia Law School by clerking for Justice Dolliver and then Justice Ireland on the Washington State Supreme Court. The views expressed herein are the personal views of the author and do not necessarily reflect the views of his employer or clients. An earlier version of this article was prepared for a WSBA-sponsored CLE of the same title, which was held on August 15, 2007, in Seattle.

NOTES
 1.  See the U.S. Department of Health & Human Services national website at www.pandemicflu.gov/.
 2.  See, e.g., Homeland Security Presidential Directive-5, ¶ 3 (setting out the policy for domestic incident management) (Feb. 28, 2003) (available at http://homeland.cq.com/hs/flatfiles/-permanentItems/eap/HSPD/HSPD5.pdf (last visited 6/25/07)).
 3.  See Washington State Comprehensive Emergency Management Plan Planning Guide at page i (Washington State Military Department, Emergency Management Division, May 2007), available at www.emd.wa.gov/plans/-documents/cemp_-planning_guide.doc (last visited 7/30/2007).
 4.  Id.
 5.  Id.
 6.  See, e.g., www.emd.wa.gov/grants/grants_-hazard_mitigation.shtml (hazard mitigation includes efforts to reduce the effects of hazards and/or vulnerability to future disaster damage) (last visited 7/30/2007). This concept of "mitigation" is conceptually distinct from mitigation encountered in the context of environmental regulation. If a development causes environmental harm that cannot be avoided, the developer may be required to mitigate that harm by conducting projects elsewhere designed to enhance the environment. In the emergency management context, one conducts mitigation by taking preventative steps that fortify the infrastructure so as to minimize the damage that could occur during a hazardous event.
 7.  Id. at (16)(a). The 2004 edition of the NRP is available at www.dhs.gov/xlibrary/assets/-NRPbaseplan.pdf. Some changes were made through a separate document in 2006. FEMA is in the process of revising the National Response Plan, and the new draft document has been renamed the National Response Framework. See www.fema.gov/emergency/nrf/mainindex.htm# (last visited 9/5/07).
 8.  The CEMP is a living document produced by the Emergency Management Division, which is part of the Washington State Military Department. The CEMP is in the process of being updated, and the new 2007 version should be released shortly.
 9.  The NRP has 15 ESFs. The draft 2007 CEMP utilizes those same 15 ESFs, but also has an additional ESF regarding the use of National Guard forces to assist civil authorities.
 10.  See www.fema.gov/emergency/nims/index.shtm for numerous documents and guidance regarding NIMS.
 11.  See RCW 38.52.020(1)(c) (setting out the legislative policy); RCW 38.52.091 (authorizing the use of mutual aid arrangements for emergency management aid and assistance).
 12.  See RCW Chapter 38.10 (setting out the provisions of EMAC).
 13.  See Emergency Management Assistance Compact 2005 Hurricane Season Response After-Action Report at EX-1 (issued by the National Emergency Management Association), available at www.emacweb.org/?1455 (last visited 6/25/2007).
 14.  See the EMD training calendar at http://emd.mhsoftware.com/ (last visited 7/30/2007).
 15.  See www.hsi.wa.gov/ for state training opportunities and http://training.fema.gov/IS/crslist.asp for federal training opportunities (last visited 7/30/2007).
 16.  National Governors Association Center for Best Practices, A Governor's Guide to Homeland Security 16-17 (2007) (quoting Ernest B. Abbott, Draft Checklist for State and Local Government Attorneys to Prepare for Possible Disasters, American Bar Association State and Local Government Law Section, March 2003). The ABA Checklist has since been updated in 2005, and is available at www.abanet.org/statelocal/checklist406.pdf (last visited 7/30/2007).
 17.  See, e.g., www.fema.gov/plan/index.shtm (FEMA resources for individual planning); www.govlink.org/3days3ways (King County and regional partnership site emphasizing personal planning).
 18.  See Laura Walker Plunkett, Walter F. Wolf III, and Kathryn M. Knight, When Disaster Strikes: Disaster Planning for Lawyers, Probate & Property (vol. 20, no. 5, Sept./Oct. 2006), available at www.abanet.org/rppt/publications/magazine/2006/so/-plunkett.shtml (last visited 7/30/2007).
 19.  Available at www.nfpa.org/assets/files/pdf/nfpa1600.pdf (last visited 7/30/2007).