This chapter will explain what hazard mitigation is, and how it fits in with the other phases of emergency management. Next, the chapter will describe the most widely used mitigation strategies and the ways they are applied to the most common types of environmental hazards. The following section will describe the legal basis for hazard mitigation as it stands in the United States today. Problems in the adoption and implementation of mitigation policies will be described and some methods of addressing them will be offered. Finally, the chapter will conclude with as discussion of the relationship between hazard mitigation and sustainable development.
As noted in Chapter 1, FEMA long ago adopted the conception of emergency management as four phases—mitigation, preparedness, response, and recovery. Hazard mitigation takes place before disasters, along with emergency preparedness and recovery preparedness. This makes it important to coordinate mitigation with preparedness. Moreover, disasters provide opportunities to rebuild communities that are more resilient. This makes it important to integrate hazard mitigation into disaster recovery (Schwab, et al., 1998).
FEMA’s (1999, p. 1-1) Hazard Mitigation Grant Program Desk Reference defines mitigation as “any sustained action taken to reduce or eliminate long-term risk to people and property from natural hazards and their effects”. One limitation of this definition is its inclusion of a diverse set of activities that have only an indirect relationship to the reduction of disaster impacts. For example, FEMA’s independent study course on hazard mitigation (Federal Emergency Management Agency, 1998a) lists emergency services and public information as mitigation measures along with more logical candidates such as flood control works, land use planning, and building codes. To overcome this limitation, Lindell and Perry (2000) defined hazard mitigation as preimpact actions that provide passive protection at the time of disaster impact. This definition clearly distinguishes hazard mitigation from emergency preparedness, which consists of preimpact actions that provide the resources (personnel, plans, facilities, equipment, materials) needed to support an active response at the time of disaster impact. It also distinguishes hazard mitigation from recovery preparedness, which consists of preimpact actions or policies that provide the resources needed to return the community to its normal patterns of social functioning after disaster impact occurs.
Legal Framework for Hazard Mitigation
The federal government has no constitutional authority to directly intervene in local land use or building construction practices. However, it has a significant incentive to change these practices because it faces an exponentially increasing annual cost for disaster recovery (Mileti, 1999). The federal government first attempted to reduce disaster losses by reducing hazard exposure. In the case of floods, this led to an extensive program of dams and levees. As the limitations of sole reliance on this approach became increasingly evident, Congress provided a legal basis for the federal government to intervene indirectly into local land use or building construction practices by passing the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988. Under Section 409 of this act, states were required to prepare and update state hazard mitigation plans within six months of a Presidential Disaster Declaration as a condition for receiving federal disaster assistance. Section 404 of the Stafford Act covered grants made available for postdisaster hazard mitigation projects. The Disaster Mitigation Act of 2000 (known as DMA2K) amended the Stafford Act. DMA 2000 substituted new (Section 322) mitigation planning requirements for the old ones in Section 409. In order for a state to qualify for disaster assistance, DMA 2000 requires one of two levels of hazard mitigation plan—standard or enhanced (www.fema.gov/plan/mitplanning/DMA.shtm). States that develop an approved enhanced plan qualify for increased Hazard Mitigation Grant Program (HMGP) funding. DMA 2000 also requires local mitigation plans and authorizes a state to allocate as much as 7% of its HMGP funds for developing state and local hazard mitigation plans. The current amount of federal assistance for mitigation projects can be as much as 75% of each project’s cost, but the total amount of funding for all mitigation projects must not exceed 7.5% of the federal assistance for a given disaster.
The creation of a Mitigation Directorate in FEMA during 1993 significantly raised the level of attention given to hazard mitigation. Hazard Mitigation Survey Teams comprising FEMA, state, and local representatives are now formed after disasters to identify community mitigation needs and opportunities. In addition, an Interagency Hazard Mitigation Team comprising representatives from relevant federal agencies is activated after flood disasters to coordinate hazard mitigation efforts. Whenever a Presidential Disaster Declaration is made, a Federal Hazard Mitigation Officer (FHMO) is appointed to manage hazard mitigation programs. The FHMO serves as a liaison with the State Hazard Mitigation Officer (SHMO), participates in the preliminary damage assessment, helps assess local mitigation issues, develops a mitigation strategy, and also evaluates state mitigation programs for the Regional Analysis and Recommendation. FEMA and the affected state establish a written agreement that defines the duties and responsibilities that the federal, state, and local governments will assume after a disaster. These and other requirements have increased the amount of effort that state and local governments have put into hazard mitigation.
The SHMO, who coordinates the development of a Section 409 plan, serves as a liaison between the federal and local levels. In addition, the SHMO generally performs the same functions at the state level as the FHMO does at the federal level. Local governments, in turn, are required to evaluate hazards, adopt appropriate hazard mitigation measures, and appoint local HMOs when necessary. They also participate on Hazard Mitigation Survey Teams and Interagency Mitigation Teams when appropriate and, finally, develop and implement Section 409 plans. The legal justification for this organizational structure is founded on the right of the federal government to offer or withhold its disaster relief funds. Thus, the federal government provides an incentive for local hazard mitigation policies, not a punishment for failure to adopt them. There is a wide array of specific programs dealing with hazard mitigation, particularly for flood and earthquake hazards. However, these programs have typically been established in response to the specific needs of historical disasters, so the result has been “an ad hoc patchwork system” (May & Deyle, 1998) that is limited in focus and even varies across hazards. In the case of flood hazard, federal policies have worked against each other. On the one hand, they promote occupation of flood prone areas through subsidized insurance and flood control projects. On the other hand, they seek to limit occupation of flood zones by regulating wetlands and development in coastal zones.
Local governments often feel that federal and state mandates are overly restrictive and do not provide enough financial assistance to achieve the goals of these mandates. Local governments, as the direct regulators of land use and building construction practices, are politically vulnerable to blame for withholding land from development and requiring flood control or earthquake resistance measures that drive up local development costs. States have attempted to support the local governments and meet federal requirements in many different ways, including mandates that local jurisdictions apply traditional land use planning tools such as zoning and subdivision regulations. However, states have also encouraged local governments to include hazard mitigation objectives in their everyday investment policies, such as open space acquisition and capital improvement plans, to reduce community hazard vulnerability.
As the cost of disasters has risen, some insurers have stopped writing policies in some hazard prone areas, but the insurance industry as a whole has begun to promote mitigation for households. The Institute for Business and Home Safety (IBHS), an insurance industry coordinating organization, has been a leader in this effort, through its Showcase Communities program (www.ibhs.org). IBHS also provides materials on disaster planning to promote business continuity after disasters through its Open for Business program.
Hazard mitigation faces important legal challenges in the United States. Several “regulatory takings” cases have been heard in the Supreme Court, the most famous of which was Lucas v. South Carolina Coastal Council (112 S.Ct., at 2886, 1992). These cases have sought to clarify the conditions under which jurisdictions can regulate the use of private property in order to accomplish a public purpose. Government has traditionally held the power of eminent domain, under which it can compel private owners to sell their property to the government at a fair market value. Historically, governments have used eminent domain to acquire property for major public benefits such as roadways. In recent years, some plaintiffs have successfully argued in the courts that some government restrictions on the use of their property constitute a “taking” of part of its value. The net effect of these cases has been to limit, but not eliminate, the ability of local governments to regulate land use for hazard mitigation. Governments must not remove all value of a property (“total taking”) without adequate compensation, regardless of the purpose of the law. There must be a “rough proportionality” (Dolan v. City of Tigard, Oregon, 114 S.Ct., at 2309, 1994) between the burden on the property owner and the benefit to the public. Many states have passed laws requiring an assessment of the impact that any proposed governmental action has on private property. There also are laws requiring governments to compensate property owners if any rule or regulation causes a decrease in the fair market value of a property by more than a specific percentage.
The principles established in previous case law were recently modified by a Supreme Court decision that endorsed a broadened definition of “public benefit” (Kelo vs. City of New London, No. 04-108 June 23, 2005). However, this does not change government’s obligation to continue to meet other established conditions when it “takes” private property. Specifically, governments must provide adequate compensation for the economic value of any property they acquire through the use of eminent domain. Moreover, widespread opposition to the Supreme Court’s decision makes it likely that state legislatures will respond by tightening legal restrictions on the use of eminent domain to condemn private property. Such legislation is likely to reestablish the principle articulated in Dolan, but the precise nature of the requirements will vary from one state to another.