FEMA flood program could violate civil rights law

“These policies are absolutely a violation of the Stafford Act non-discrimination clause. There is obviously a massive disparate impact on the basis of race, national origin and ethnicity,” said Madison Sloan, attorney and director of disaster recovery at Texas Appleseed, a justice group racial.

Advocates said FEMA could combat discrimination by overhauling the way it decides whether a flood protection project makes financial sense — a process that favors expensive homes.

“FEMA should prioritize projects that protect the most people and the most homes, not the homes that are worth the most,” Sloan said.

FEMA press secretary Jeremy Edwards did not respond directly to questions about the agency’s alleged violation of civil rights provisions. But he said FEMA is analyzing ways to help disadvantaged communities get FEMA mitigation grants, and added that the agency will begin this year to prioritize communities with high poverty rates, large minority populations and other indicators of disaster vulnerability.

“We understand that the reality of underserved communities creates barriers to equal access to programs and assistance,” Edwards said in an email yesterday, adding that FEMA Administrator Deanne Criswell, ” recognizes this profound injustice”.

The Stafford Act contains an unusually strong civil rights provision that protects a wide range of people from intentional discrimination in the distribution of disaster funds and inadvertent discrimination caused by seemingly benign policies, said attorney Hannah Perls. at Harvard Law School‘s Environmental & Energy Law. Program.

Despite these protections, discrimination cases against FEMA face daunting challenges, in part because the agency can claim it selects grant recipients without knowing their race or income level. FEMA does not track these details.

“One of the things Congress hoped to prevent was these seemingly neutral policies that have disparate impacts on protected groups,” said Perls, who wrote an influential piece last year on the Stafford Act and equity.

The allegations of federal discrimination come after President Joe Biden vowed to address decades of unfair treatment of communities of color in environmental policy. Frontline neighborhoods have often been subjected to toxic pollution from power plants, major highways and industrial facilities. They also face intensifying impacts of climate change, including flooding and extreme heat.

E&E News found that federal policies requiring people to own their homes to receive uplift funding and to pay, in many cases, tens of thousands of dollars for the project tend to penalize people of color. . Indeed, black and Hispanic households are much less likely to own a home and have much less wealth than white households.

The agency also requires people who receive elevation funds to have a federal flood insurance policy. This tends to penalize low-income households, which according to FEMA’s own study were much less likely than middle- and high-income households to have flood policies.

“These are exactly the kinds of outcomes that Congress intended to prohibit with the non-discrimination clause,” Perls said. “Because there are such strong correlations between race and property and race and wealth, requiring both of these things as a precondition for receiving assistance is discriminatory insofar as it leads to disparate impacts. “

The Stafford Act clause also casts a wide net of protection by prohibiting discrimination on the basis of economic status and English proficiency in addition to the protected categories of race, nationality, religion, disability and gender. .

“They cannot discriminate against you because you are poor. It’s unusual in most anti-discrimination clauses you see,” said John Philo, executive director of the Sugar Law Center for Economic & Social Justice in Detroit, a nonprofit focused on low-income workers. “Usually it’s race, gender, age, military status and other things.”

Congress enacted the non-discrimination provision in 1970 “to combat endemic discrimination in federal, state, and private assistance programs after Hurricane Camille,” Perls wrote in his article, referring to a devastating hurricane. Category 5 in 1969 that made landfall in Mississippi.

Low-income households and members of minorities “were the categories of particular concern to Congress,” Perls said in an interview.

An agency official has previously denied that FEMA discriminates when allocating elevation funds, though the agency has acknowledged equity issues with many of its programs, including the emergency aid it provides to people immediately after disasters.

“FEMA does not discriminate against individuals,” David Maurstad, the agency’s acting associate administrator for resilience, said in an April interview.

Criswell, the FEMA administrator, told reporters in February that the design of some agency programs “had the unintended consequence of creating inequities.”

Maurstad noted that FEMA does not track the race or ethnicity of people who receive FEMA aid or grants. “Because we don’t collect them, we don’t discriminate against individuals,” he said.

The lack of information about the race and ethnicity of people receiving elevation money or other FEMA assistance would prevent someone from proving discrimination, and could also prevent FEMA from evaluating internally the disparate impacts, experts said.

“It’s certainly a significant hurdle if the agency distributing the funds isn’t able or willing to collect and report data on the recipients of those funds,” said Amy Laura Cahn, director of Environmental Justice. Vermont Law Clinic. School.

“That’s why having data on race and ethnicity is so crucial. It should be something that FEMA does and requires its federal funding recipients to do,” Cahn added, referring to states and localities that receive and distribute FEMA grants to communities and households.

Sloan of Texas Appleseed said “the absence of race and ethnicity data is not the absence of discrimination. It’s a great way to hide discrimination. And that’s why it’s so important for FEMA to start collecting this data.

Elevation funds are allocated through competitive grant programs that require states and municipalities to submit highly technical applications showing that the cost of raising a home will be less than expected flood damage.

Elevation grants – worth up to $550,000 per home – increase property values ​​for homeowners and knock their flood insurance rates down by thousands of dollars. FEMA has spent $2 billion to raise 14,400 homes since the early 1990s.

The E&E News survey found that in 12 of the 18 states that received nearly all of the lift funds, more than half of the money went to communities where the median household income in 2019 was greater than $100,000 or the population was greater than 90%. white. The United States had a median household income of $65,700 and was 60% white in 2019, which is the most recent year for which FEMA spending records are available.

Although the Stafford Act contains strong civil rights language, the courts have made it difficult to prove discrimination by granting FEMA wide discretion in allocating disaster relief and in making other decisions.

“The courts have said that FEMA has a very wide discretion in the policies it issues,” Sloan said.

FEMA itself made that argument as a defendant in a 2018 lawsuit that alleged the agency discriminated against residents of Puerto Rico in the emergency aid it provided. to individuals after Hurricane Maria demolished much of the U.S. territory in 2017. The agency said in a court filing that the Stafford Act allows FEMA “to offer disaster relief at its discretion without embroiled in costly litigation”.

A federal judge dismissed the lawsuit three months after it was filed.

Legal experts said FEMA could use its discretion to adopt policies that make it easier for low-income and minority households to qualify for elevation funding. One potential change is to revise the way it calculates the benefit of a house elevation project to include factors beyond preventing property damage.

“They might say we’re going to value social cohesion, not the break-up of communities,” Harvard’s Perls said.

FEMA has taken a step forward to help disadvantaged communities obtain flood mitigation grants. This policy review is also a tacit recognition of its equity issues. FEMA’s Flood Mitigation Assistance Program, which distributes approximately $200 million in grants annually, will begin this year prioritizing projects in areas with high rates of poverty, unemployment and unemployment. other indicators of “social vulnerability” to disasters.

A version of this report was first published in E&E News’ Climatewire. Access more complete and in-depth reports on energy transition, natural resources, climate change and more in E&E News.