Neighborhood Legal Services of Los Angeles County Issues Public Comment on FEMA Proposed Rule

WASHINGTON, March 13 -- William Simonsick, staff attorney for policy advocacy at the Neighborhood Legal Services of Los Angeles County, Los Angeles, California, has issued a public comment on the Federal Emergency Management Agency proposed rule entitled "Cost of Assistance Estimates in the Disaster Declaration Process for the Public Assistance Program". The comment was posted on March 12, 2021:

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I. Introduction

Neighborhood Legal Services of Los Angeles County (NLSLA) is a legal aid law firm providing free legal assistance to low-income Los Angeles residents with disaster, health, housing, immigration, public benefits, clean slate, consumer, disaster, domestic violence, education, family, and workers' rights issues. We appreciate the opportunity to comment on the Federal Emergency Management Agency's (FEMA) proposed rulemaking in Docket ID FEMA2020-0038, the Cost of Assistance Estimates in the Disaster Declaration Process for the Public Assistance (PA) program (Rulemaking).

FEMA has proposed several changes to the estimated cost of the assistance disaster declaration factors that it uses to evaluate whether Public Assistance will be made available after a disaster. These changes include:

* Raising the nationwide per capita cost standard to account for inflation increases between 1986 and 1999,

* Adjusting the statewide per capita indicator based on the state's total taxable revenue (TTR), and

* Increasing the minimum threshold for a state to receive FEMA resources.

These changes will reduce the likelihood that many state and local governments, as well as nonprofits, will receive Public Assistance after a disaster. These changes, particularly adding an adjustment for TTR, will gravely impact the ability of low-income individuals, families and communities to recover after disasters that cause significant damage to their community but that FEMA deems them capable of paying for under the proposed rule.

Public Assistance is a crucial part of any disaster recovery because it provides funding necessary to state and local governments, and community-based organizations (CBOs) for repairing infrastructure, property restoration, and other repairs. The proposed changes will negatively impact low-income communities impacted by disasters by depriving them of assistance that would otherwise be a foundational step in their recovery. As FEMA recently noted, after a disaster "[PA] Funds are used for projects to renovate classrooms, refurbish hospitals, restore parks and repair public transportation systems so students can go to safe schools, doctors and nurses can provide medical care and families can enjoy the outdoors in public parks."/1

If local and state communities can't access these funds, low-income residents will be disproportionately impacted. Even if they identify funds to use, they often have to divert them other necessary services. As the Urban Institute noted in 2017, local and state governments spend most of their resources on public welfare, education, health and hospitals, and police and corrections./2

If PA is not available, low-income communities will be left further behind, thereby exacerbating existing inequalities./3

The legislative history of the Disaster Reform and Recovery Act of 2018 (DRRA), which authorized the review process leading to this Rulemaking, is aimed at utilizing disaster mitigation as the primary cost-saving technique, indicating a 1 to 4, to 1 to 8, return on mitigation expenditures versus disaster recovery costs./4

However, no legislative history, or the enacted statute itself, indicates any Congressional or statutory intent to merely reduce the amount of capacity and aid available. Even the Rulemaking's goal of reducing disaster declarations contravenes this intent; the proposed Rulemaking would instead reduce capacity for mitigation, efforts which are useful for reducing the impacts of disasters on low-income communities which disproportionately struggle to rebuild. In light of the legislative history, the authorizing statute, and the significant negative effects on disaster victims, in particular low-income individuals and their communities, NLSLA remains concerned about the proposed changes from this Rulemaking and urges FEMA to consider changes more appropriate to the intention of the DRRA.

II. Inflation

The proposed rulemaking would adjust the per capita price indicator to suddenly account for inflation between 1986 and 1999, substantially increasing the amount of damage that would need to be assessed before FEMA would recommend Public Assistance be provided to a state after a disaster. Raising the per capita indicator is meant to reduce the number of utilizations and gross amount of federal aid provided to states, leaving the onus on state and local governments to fill that gap. This proposal to significantly reduce disaster funding by accelerating the per capita price indicator overnight comes as state and local governments are reeling from the impact of the COVID-19 pandemic, and California continues to assist survivors of devastating Wildfires in 2017, 2018, 2019 and 2020. This change will significantly impede communities' ability to recover and will result in less infrastructure repair, safe debris removal, and funding to nonprofits that provide vital services to low-income communities.

III. Adjustment of Per Capita Indicator by TTR

The proposal to adjust the per capita indicator by TTR will grossly overestimate tax revenue, and thus state and local jurisdiction's ability to recover without Public Assistance. This proposal will be particularly detrimental to states like California, where the measure will increase the amount of damage assessed by 87% before FEMA will recommend Public Assistance. This change will result in far less funding to communities that have suffered significant disaster related damage. TTR is an inaccurate metric, only a rough estimate as to what taxes could be collected, even though some revenue streams included under TTR are nearly impossible to tax./5

This figure is also released two years after the measurement of the relevant data, and may not account for uneven impact of crises; with COVID impacting different states in different ways, the lag may create a substantial discrepancy over the next several years. Section 1239 of the DRRA does not require a move to TTR,/6 so such changes are unnecessary and, like the changes to the inflation and minimum threshold numbers, detrimental to disaster assistance capacity.

IV. Minimum Threshold

The proposed rulemaking also increases the minimum threshold for a recommendation of Public Assistance funding by FEMA. This will result in many of the same problems found with the changes to the inflation calculation, reducing the capacity to respond to the needs of low-income and vulnerable individuals. As with the other proposed changes, there are many programs that states administer through PA funds, which are crucial for recovery by disaster survivors. The 2021 wildfire season is coming up soon, and it would be unlikely - if not impossible - for the state-administered programs to adapt in time to provide relief for smaller wildfires. Even if the wildfire is small in terms of threshold, this does not correlate to the severity of destruction: a smaller number of people may be impacted but suffer complete devastation and be unable to recover without support, especially if such disaster occurs in an area with a higher percentage of low-income individuals. Finally, Congress had the opportunity to change the minimum threshold, but did not do so. Section 1224 of the DRRA mentions a 1 million USD threshold multiple times, so that bill could have edited these provisions but chose not to./7

When combined with the change to TTR and the substantial increase to the per capita index on inflation, some states will see unacceptable increases in the thresholds required for PA fund disbursement. The proposed state Cost of Assistance (COA) indicators demonstrate how much capacity will be decreased; multiple states will see COA changes above 100%, and states frequently beset by disasters such as California, Colorado, and Texas will all see changes over 50%. The consequence will be that low-income communities, with smaller tax bases and a higher number of individuals with unique needs such as those on fixed-incomes, will be left behind during the aftermath of disasters. The PA program already underserves low-income communities due to the requirement to match funds;/8 this would eliminate even the opportunity to receive these funds for many disasters.

V. Evaluation of Multiple Disasters

FEMA requested comment regarding its current practice of evaluating the impact of other disasters in the jurisdiction to a 12-month period. However, it can take states and localities that experience disasters years to recover and their recovery will inevitably be derailed if another disaster hits within a relatively short time./9

Recovery is a long and complex journey,/10 causing substantial trauma in the process./11

VI. Conclusion

The proposed rulemaking will negatively impact low-income communities by removing the possibility of Public Assistance funding from many states, including California, for all but the largest-scale disasters. By raising federal disaster declaration thresholds, the funds and capacity available will be insufficient for many low-income individuals and communities to rebuild. Reducing disaster declarations in general have a substantial negative impact on low-income communities and individuals, through both Public Assistance and recovery programs such as D-SNAP and SBA loans which would be unavailable without such declaration, and therefore emphasis may be better levied upon disaster mitigation than the reduction of capacity.

We appreciate this opportunity to comment on this Rulemaking, and would request that your organization contact NLSLA-DAP's policy advocate, William Simonsick, [email protected], for any questions, comments, or desire for further information.

Sincerely,

William Simonsick

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Footnotes:

1/ FEMA. 'Additional FEMA Help Approved for Nine California Counties', available at https://www.fema.gov/press-release/20201125/additional-fema-help-approved-nine-california-counties

2/ Urban Institute, 'State and Local Expenditures', available at https://www.urban.org/policy-centers/cross-centerinitiatives/state-and-local-finance-initiative/state-and-local-backgrounders/state-and-local-expenditures

3/ FEMA programs already under-address low-income communities, see generally National Advisory Council Report to the FEMA Administrator, November 2020, available at https://www.fema.gov/sites/default/files/documents/fema_nac-report_11-2020.pdf

4/ House Report on H.R 4460, 115-1098, pages 15, 16. This includes incentivizing state and local government investment in mitigation efforts, requiring assistance funds to include mitigation, faster structure inspection, and agency efficiency, accountability, and streamlining.

5/ D. Schultz, 'State Taxation of Interstate Commuters: Constitutional Doctrine in Search of Empirical Analysis', 16 Touro Law Rev. 435 (2000).

6/ Disaster Recovery and Reform Act of 2018, Section 1239.

7/ Disaster Recovery and Reform Act of 2018, Section 1224 - Section 430(a), Section 430(b)(1), Section 430(d)(1).

8/ National Advisory Council Report to the FEMA Administrator, November 2020, at page 12, available at https://www.fema.gov/sites/default/files/documents/fema_nac-report_11-2020.pdf

9/ Camp Fire victims are still struggling as of the date of writing, see 'Homeless Camp Fire Survivor Speaks About Evictions', ABC 12 News, available at https://www.actionnewsnow.com/content/news/City-of-Chico-movesforward-with-cleaning-up-the-citys-parks-and-moving-out-the-homeless-573802431.html

10/ See generally L. Arendt, D. Alesch, Long-Term Community Recovery from Natural Disasters, CRC Press (2014). Some communities never fully recover, such as low-income communities coping with the permanent loss of large numbers of Hurricane Katrina survivors, see S. Green, 'Building Resilient Communities in the Wake of Climate Change While Keeping Affordable Housing Safe from Sea Changes in Nature and Policy', 54 Washburn L.J. 527 (2015) at 540. High initial displacement rates can be seen for months after large disasters, see T. Yabe, K. Tsubouchi, N. Fujiwara, Y. Sekimoto, and S. Ukkusuri, 'Understanding post-disaster population recovery patterns' 17 Journal of The Royal Society Interface 163 (2020), 3. Recovery is more difficult for low-income or vulnerable communities, see C. Munoz, E. Tate, 'Unequal Recovery? Federal Resource Distribution after a Midwest Flood Disaster', 13 International Journal of Environmental Research and Public Health 5 (2016), 514, 516-517.

11/ E. Felix, M. Kia-Keating, L. Brown, T. Afifi, W. Afifi, 'Family Functioning and Posttraumatic Growth Among Parents and Youth Following Wildfire Disasters', 85 American Journal of Orthopsychiatry 2 (2015) 191-200; T. Paveglio, C. Kooistra, T. Hall, and M. Pickering, 'Understanding the Effect of Large Wildfires on Residents' WellBeing: What Factors Influence Wildfire Impact', 61 Forest Science (2015); J. Rhodes, C. Chan, C. Paxson, C. Rouse, M. Waters, E. Fussell, 'The Impact of Hurricane Katrina on the Mental and Physical Health of Low-Income Parents in New Orleans', 80 American Journal of Orthopsychiatry 2 (2010) 237-247.

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The proposed rule can be viewed at: https://www.regulations.gov/document/FEMA-2020-0038-0001

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