Kristi Noem has been … Actually, it’s hard to know how to finish that sentence; there’s so much to say. Let’s just say she’s the worst Secretary the Department of Homeland Security has ever had and leave it at that.  Among her failings, her damage to the Federal Emergency Management Agency (FEMA) may not be the worst, but it’s far from the least. Restoring FEMA will be a major undertaking and a heavy lift in an administration best known for agency destruction.

One thing that needs to be restored is FEMA’s special status within DHS. Although FEMA is part of DHS, it enjoys an unusual degree of legal protection from its host agency.  Section 506 of the Post-Katrina Emergency Management Reform Act of 2006 (6 USC § 316) provides that:

“The Secretary [of DHS] may not substantially or significantly reduce the authorities, responsibilities, or functions of the Agency or the capability of the Agency to perform those missions, authorities, responsibilities, except as otherwise specifically provided in an Act enacted after the date of enactment of the Post-Katrina Emergency Management Reform Act of 2006.”

In addition,

“No asset, function, or mission of the Agency may be diverted to the principal and continuing use of any other organization, unit, or entity of the Department, except for details or assignments that do not reduce the capability of the Agency to perform its missions.”

You will be shocked to learn that a cabinet secretary in the current Administration seemed to have ignored these clear legal prohibitions.

Indeed, Noem’s interference with FEMA was extensive and destructive. She demanded to personally review any payment over $100,000, which includes much of the agency’s work, and then allowed an enormous backlog to accumulate while she was busy cultivating her public image.  She fired some FEMA workers and was reportedly planning to ax half the agency’s employees. In the meantime, almost ten percent of the badly overstretched workforce left. Many experienced leaders are gone. The agency stopped renewing contracts for the thousands of on-call workers who respond to crises. The Administration canceled the Building Resilient Infrastructure and Communities (BRIC) Act, stalling risk mitigation projects.

Noem doesn’t deserve all the blame. Since Trump took office, FEMA has gone through three interim heads because Trump hasn’t gotten around to nominating a permanent FEMA Administrator. The most recent appointee has no experience managing disasters. Trump also rejected sixteen major disaster requests. Denials and delays of disaster aid seemed to disproportionately impact Democratic-leaning states.  In addition, Trump attempted to override state building codes and inspections for reconstruction in LA, increasing safety risks for rebuilt housing.

With Noem’s fervid support, Trump also announced the intention of eliminating FEMA entirely, as he has essentially done to the Agency for International Development (AID) and the Department of Education.  He said, “We want to wean off of FEMA, and we want to bring it down to the state level. A governor should be able to handle it, and frankly, if they can’t handle it, the aftermath, then maybe they shouldn’t be governor.” A task force was assembled to make recommendations about FEMA, but when a draft report called for reforms rather than abolition, its release was postponed, seemingly indefinitely.

It’s going to be very difficult for a new DHS head to shift course given the message coming from the White House. But without a change in the direction, a weaker FEMA will increase the country’s vulnerability to the disaster risks posed by an increasingly unruly climate.

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has also spent time at Minnesota Law School (where he became the first Henry J. Fletcher Professor of Law in 1987), Stanford Law School, Harvard Law School and the University of Chicago Law School (where he was named McKnight Presidential Professor of Public Law in 2000). He is also a pioneer in the emerging field of Disaster Law, which examines legal issues related to society’s ability to deal effectively with the aftermath of catastrophes and the risk of future disasters.

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