I always know we’re in trouble when I log on and find FEMA trending.
There has been an exceptional amount of misinformation, even full-fledged conspiracy theories, about this month’s Norfolk Southern train derailment in Ohio. There have been widespread questions about the response approach taken, and the specific policy pathways used or unused. It has been three weeks since the train derailed on the night of February 3rd, but as the incident has now been catapulted into national politics it is important to address some of the misinformation and provide a broader situational context for the response.
My caveat, as has been this whole time, is that I am not in any of these government agencies, nor am I on the ground in Ohio. Certainly, there are decisions being made that the public is not privy to as is the case in any disaster. I hope these will be spelled out later in After Action Reports and other assorted investigations and litigation. However, there is enough public information for us to begin analyzing what has unfolded and provide context that helps explain why. Each point I cover here is itself something that is quite nuanced; there will be entire books written about this event. My intention for this article is to serve as an explainer piece for non-experts, rather than some end-all-be-all technical analysis.
Also, if you’re new around here – let me introduce myself. I have a doctorate in emergency management and teach disaster policy. I wrote a book called Disasterology: Dispatches from The Frontlines of The Climate Crisis which is a primer on how the US emergency management system is set up and what needs to be changed. Relevant here, I was born in a town in Illinois that was, after much local activism, finally designated as having a Superfund site. I also lived in Louisiana during the BP oil disaster, during which I helped with community organizing efforts to hold both BP and government agencies accountable for their response.
An Emergency In Ohio
A train derailment of hazardous materials in a small town is no Black Swan event. It is a well-practiced scenario for emergency managers. In the past 20 years, there have been about 200 train derailments with hazardous materials onboard. It is the type of event that has happened persistently throughout US history. This is something that agencies across the country do trainings and exercises for alongside first-responder agencies. In fact, as I have watched the response unfold, there has not been anything surprising or even unusual about the actual derailment of the train. This type of incident was inevitable given the failure of the federal government to regulate the rail industry. The only questions were when and where.
In fact, if there is something surprising, it is that the impacts were not worse. If the train had derailed in Cleveland, where it had passed through earlier, or if more cars were carrying hazardous materials, it could have been significantly more devastating and damaging. Relatedly, within an emergency management framework, the size and scale of the derailment in Ohio is what we consider a large-scale emergency, not a disaster or catastrophe. This is an incident for which the impacts are in a geographically isolated area, and, as best understood right now are affecting a relatively small population (East Palestine has a population of about 5000 people).
Hearing an incident called an emergency, and not a disaster, can be frustrating for the people experiencing it. I want to emphasize that categorizing the derailment as a large-scale emergency does not minimize the devastation to the affected areas. Emergencies are also very bad, but they are categorically different from disasters and catastrophes.
Categorizing events this way helps us identify the appropriate people and organizations who need to respond and the most effective management approach. For example, other very bad incidents in US history also fall within the emergency category including the Triangle Shirtwaist Factory fire and the Flint Water Crisis. Comparatively, incidents like the 2010 Haiti Earthquake, the 2004 Indian Ocean tsunami, and COVID would be considered catastrophes. Intuitively, you can probably see the difference in size, scale, and type of response that is required. Fortunately, this is not Chornobyl.
Events become more complex to respond to as you move from an emergency to a disaster to a catastrophe. There are examples of officials failing to manage an emergency effectively but generally, we handle them pretty well. In fact, emergencies are what we are most prepared to manage. That’s because they can generally be addressed using local resources, plans, and procedures, as opposed to disasters and catastrophes which require widespread federal and international resources.
The reason this categorization matters is that it provides us with the context within which to evaluate the response. Because this event is a large-scale emergency, officials should have been dealing with a manageable response; a response for which they had existing plans and procedures. This is a relatively common type of incident, and it falls within the structure of existing disaster policy. Officials should have been capable of handling the response effectively.
But it’s three weeks later and it’s still a top story in the national media. That just doesn’t happen with incidents of this size and suggests that something about the response has not gone to plan.
So, what happened?
Something Isn’t Right
Emergencies, disasters, and catastrophes unfold in remarkably predictable ways, despite the public perception of them as moments of unpredictable chaos. (Incidentally, it’s a good thing that they are predictable because that’s what makes us able to plan for them and prevent them!) If you’re familiar with disaster research and understand emergency management policy, it is very easy to spot when something goes “wrong” with how people and organizations are responding. My expertise in this area means I can predict what will happen when a train derails with hazardous materials, near a small town. So, when that scenario begins to unfold in real life, my hackles go up if anything falls out of line with what I would expect to happen.
The train derailed the night of February 3rd just before 9:00pm. On average 2,000 trains derail every year in the United States but this one immediately caught my attention because of the evacuation order. For public officials, calling an evacuation is a big deal. It means that there is a significant risk to the public. In this case, the threat to the public was the several train cars with hazardous materials. At the time, from the outside looking in, it seemed that local first responders along with hazmat experts, and Norfolk Southern (more on this later) were managing the incident. The mayor declared a state of emergency for East Palestine and shelters were opened. I also saw that EPA personnel were there within five hours of the derailment. This was the correct federal agency to be onsite given the nature of the incident and the disaster policy pathway that would be used moving forward. Based on the information given to the public, and covered by the media, the response was going the way I would anticipate (more on this later).
48 hours after the derailment, however, my hackles went up.
Additional evacuations had been called, which was concerning in terms of what it meant about official’s fears of an explosion, but not necessarily unusual. Evacuation orders often shift throughout the course of a response as conditions change or as more information is learned. What made me do a double take was the Facebook post from the Colombiana County Sheriff’s office that night.
The post said they would be arresting anyone who did not evacuate. I want to be 100% clear about this: arresting people in an evacuation is extraordinarily bad emergency management practice. It is not in line with the research on human behavior in disaster or best practices in the field. Evacuation decision-making is something that is well studied in emergency management. We know why people do not evacuate and we know that threatening to arrest them is not the way to approach the problem.
Instead, officials need to explain to residents why they are being asked to evacuate, and explicitly told what the risks are for them if they choose to stay. Importantly, they need to be told this by people they trust and often need to hear it more than once and from more than one source. Critically, they also need to have the resources and physical ability to evacuate. I wrote about this in more detail for MSNBC here. One thing I will be looking for in the After Action Report (but probably won’t be there) is who decided to take this approach and, assuming it wasn’t them, if the local emergency management agency tried to stop it.
Besides the carceral-state of it all, the reason threatening to arrest people in a disaster is so problematic is that it creates a hostile environment. It pits authorities against the public which is the exact opposite of what should happen. The public is an active participant in the response – and, in my opinion, is the most important stakeholder. As an emergency manager you must get the public to buy-in to the response you’re trying to coordinate. Emergency managers do not have many ways of getting the public to go along with them when they ask them to do things like prepare for an imminent event, evacuate, or shelter in place. What emergency managers have is their credibility and their community’s trust. Maintaining public trust so you can protect your community is one of, if not the most, fundamental principles of emergency management. No one should be working a response to any event who does not understand and prioritize this.
In support of this, I was pleased to see how many in our field were quick to question this choice. The Sherriff Office’s Facebook post began circling around emergency managers and disaster researchers followed by questions of “what the hell are they doing??”
Once my hackles go up on a response, I have to dig. It took only a few minutes to find out the Sheriff’s office wasn’t the only problem. I reviewed more closely the information being shared publicly by local agencies regarding basic issues like evacuation orders, location and availability of shelters, and the safety of water/soil/air. At times, these messages conflicted, were incomplete, lacked context, and/or were confusing. Everything from the social media accounts not following even the most basic best practices to how the official warnings were sent out raised red flags.
In the absence of clear information communicated to the public by a trusted source, misinformation fills the void. Credibility is fragile.
There are reasons to be sympathetic to the local emergency management agency (not the Sheriff’s office, IMO). They are understaffed as is the case in nearly every county in America. This incident very clearly overwhelmed them and, frankly, would probably overwhelm most small county emergency management agencies. At the same time, this shouldn’t be happening. Social media is not a novelty. Knowing how to communicate with the public is one of, if not the most, fundamental skills an emergency manager needs to be able to keep their constituents safe. Jim Whittington has a great thread looking into the challenges surrounding Public Information Officers (PIOs).
It's also a skill you need to execute quickly and effectively because, as we’ve come to see, without it all hell breaks loose.
A Playground of Communication Failures
Most disasters get a day or two of attention before the public moves on. I started to notice that this event wasn’t following that same trajectory. Instead of posts and coverage decreasing, they began to increase. To see that so many days after the incident occurred is unheard of in emergency management.
Axios put together a graphic that shows the number of Tweets about the derailment that confirms this observation.
Of major concern was that while some posts were simply trying to call attention to the incident (good), an increasing number of them were leaning towards conspiratorial (bad). Most of the TikToks and Tweets that were initially going viral, weren’t coming from local residents or people with expertise in the event, but rather a collection of seemingly random people who were making exaggerated, if not completely false, claims. (This is exactly why I’ve advocated a need for more disaster experts to join TikTok.) Even worse than that, I did not see officials doing anything to effectively dispel these viral claims, let alone be proactive in preventing them.
There is always misinformation during disasters. That has always been true. Often this misinformation is spread unintentionally as well-meaning people try to piece together what is happening in quickly evolving and confusing situations. The changing landscape of social media sites and the speed at which misinformation can spread is a daunting challenge for emergency management, especially considering the field has not been given the resources to try and manage this aspect effectively. That said, this is why effective communication from the start matters so much. The stopping of misinformation has to start local and from the second the incident happens (really before since you want to build a following and trust with your community pre-disaster). Managing a response in the 21st century isn’t just managing the actual incident; it also requires managing the internet’s perception of the incident.
From the start, the incident in Ohio should have been treated as one that could quickly lead to the spread of widespread misinformation because it had the hallmarks of uncertainty.
1. A private company (Norfolk Southern) caused the disaster. It can be assumed the company will be motivated to lie or conceal information to protect their profit.
2. There were existing connections between that private company and various politicians involved.
3. The full scope of chemicals onboard and the potential health impacts were not fully known.
These factors were the groundwork for a web of stories about ulterior motives, pay offs, and coverups, whose spread was facilitated by the failure of officials to quickly capture the public’s trust and attention through effective communication.
Then, of course, you must consider that those hallmarks of uncertainty, are in fact completely valid reasons to question the motivations and actions of the people leading the response.
The Press Conference
Seemingly in recognition of the growing confusion and frustration with the response, a press conference was called for the evening of February 8 (Day 6 of the response). The press conference, which began two hours late, took an unexpected turn as videos began to surface online showing reporter Evan Lambert of NewsNation being pushed to the ground, where the Colombiana County deputy sheriff pulled out her pink handcuffs and arrested him.
It seems that the commander of the Ohio National Guard did not like that Lambert was doing his live shot as the governor was about to speak. He pushed Lambert and it escalated to the point of him being arrested for trespassing and resisting arrest.
The first problem here is the obvious “what the fuck” of it all. A journalist arrested (!!!) not only in the course of simply doing their job (!!!), but at a press conference (!!!). This is an exceptionally clear case of an abuse of power. The video footage very clearly showed that Lambert had not done anything wrong, let alone anything worthy of being arrested. Even Governor DeWine immediately confirmed that reporters have every right to report during the press conference.
Incidentally, I cannot think of another disaster-related press conference in the US in which a journalist was arrested (I searched the US Press Freedom Tracker, and didn’t find anything but if you have an example, please let me know).
The good news is that the district attorney has since dropped all charges. My personal dream is that NewsNation sues them and uses the money to fund local journalists to do long-term reporting on any continued health effects and recovery in Ohio and other communities affected by toxic chemicals. The bad news is that I have not heard anything about any type of investigation or repercussion for the National Guard or Sheriff’s Office. I’m sure we’ll be hearing about that deputy sheriff again, though.
The immediate effect of this incident was that it started to spread online and, my guess, is that it was what initiated the surge of attention that has followed.
Slow National News Coverage
I did 60+ interviews with journalists last year about essentially every major disaster that occurred in the US. I also forwarded along probably another 60 requests to other researchers. This is to say, I spend a lot of time talking to journalists about disasters, and there are clear patterns in what types of events get media coverage, when, by whom, for how long, and what the angle will be. Much of this is also supported by research on disaster media coverage.
I mention this because I did not get a request for an interview from a journalist about Ohio until February 9th (Day 7 of the response). Obviously, the date that journalists start asking me questions is an imperfect measure but it is one indicator to me of how they were interpreting and covering the event, which is to say, in this case, not as a crisis and exceptionally late.
Media Matters confirmed in an analysis that the initial coverage from the national media was minimal, slow, and failed to explain the rail industry’s role in weakening safety regulations.
It is worth noting that it has been a busy month; a lot of other things have captured national attention. The front-page stories in the first three days of the response were about China’s spy balloon. Then the Turkey/ Syria earthquake, appropriately, captured the media’s attention. The next day was the State of the Union and so on. Does the national media need to be better about chewing gum and walking at the same time? Yes, but it’s also not at all surprising that the train derailment wasn’t the biggest story when it first happened.
Overlooking Local News
Despite the issues with the national coverage, persistent claims on social media that “no one” was covering the derailment overlooked the exceptional coverage from local news outlets. Google has a news feature that you can use to find these stories easily. So, although the national news was objectively slow in their coverage, local news outlets were covering the derailment from the very beginning and have continued to do so. Joe Donatelli, a local reporter at WEWS, has been doing a daily Twitter thread of their coverage as just one example. Certainly, there could be more local coverage to help investigate some of the outstanding questions about this incident but that would require a robust local media landscape which just doesn’t exist anymore across the country. This will be felt most in the long tail of this event when national media leaves.
General Media Disaster Illiteracy
There’s a broader disaster media context that’s important to understand here too. This type of incident isn’t one that would normally capture widespread attention. As I’ve said, there are a lot of train derailments that happen and, the complexity of the hazmat component of the event may not have stood out to some news outlets. As Allison Fisher told On The Media this falls in a “long line of environmental degradation, industrial accidents that go uncovered, and, as a result, those that are perpetuating them go unaccountable.”
If it has a high death toll, a dramatic search and rescue, and a lot of compelling images, it’ll make the cut. They like covering hurricanes because there is time to build an audience and anticipation, and there may be dramatic consequences. They like urban earthquakes and big tornadoes because there is dramatic, visible damage. Other hazards don’t play as well.
I have long discussed the issues, generally, with disaster media coverage. To be blunt, “big M” media, generally, sucks at covering disasters and are even worse at covering emergency management. Although many mean well, they’re operating within conditions that just don’t allow for effective disaster coverage. This is a dire situation.
This is why we so desperately need dedicated disaster journalists – there are really only a few across the country and oh boy is their coverage leaps and bounds above the rest. I mention this because in this instance the environmental reporters, in my opinion, have been doing the best national coverage. It’s almost as though this incident being relevant to their beat, which they’ve established expertise and contacts in, has something to do with it? I digress.
Misinformation & Conspiracies
The way the coverage of Ohio has unfolded hasn’t been placed in this broader media context. Instead, it has been fit nicely into conspiracy narratives. For example, when the deputy sheriff arrested the reporter Evan Lambert, it fed not only into the environment of hostility they had already begun to create with the evacuation threats, but also the environment of uncertainty. It made it seem that someone was trying to prevent the media from reporting on the derailment. This specific incident led to a constant stream of social media posts that claimed his arrest was evidence that government officials were working with Norfolk Southern to cover up the full effects of the disaster by preventing the media from reporting on the incident.
If government officials didn’t want the media covering the train derailment, they wouldn’t have held a press conference with the governor. If they didn’t want the press coverage to be aired, they would have turned off the cameras. Instead, they arrested a journalist, live on air, at a press conference with the Governor headlining. Not really screaming mastermind coverup, frankly. The more likely reason? As Evan Lambert said, “this is what it’s like to be a Black reporter in 2023”.
If you aren’t familiar with the broader context of US disaster reporting, I absolutely understand how it would seem like a coverup is taking place. Combined with the early missteps with public communication, this has created a deeply dangerous scenario of uncertainty with few trustworthy sources.
This brings us back to the first week of the response. By the time Evan Lambert was arrested there seemed to be an agreement among emergency mangers that the response had turned into a case study of what not to do. That is when I agreed to write the op-ed for MSNBC on the subject. I want to mention here that it is extremely rare to see emergency managers criticize other emergency managers during an active response; that should give you an idea of how clear it was that we were barreling into a communication crisis. If there was any hope of gaining any kind of trust back, someone involved in the response would need to act fast.
Disaster Policy
There is a relatively complex web of disaster policy in the United States with various federal, state, and local laws governing who responds, when, where, and under what conditions. In the first week of the derailment, in my opinion, the agencies involved were the ones that I would expect to see involved in this kind of incident.
The question of whether those agencies did what they were supposed to do, when they were supposed to do it is a different question which I won’t address further here because we don’t have all the information needed yet to draw those conclusions.
Alphabet Soup
In any emergency the first government officials to respond are those at the local level. In this case, that included the first responders who were putting the fire out, along with local emergency management. As far as I see, East Palestine does not have an emergency manager themselves. They are a small town of about 5,000 people so this is not unusual. In the absence of a municipal level emergency management agency, Colombiana County Emergency Management fills that role. From their website it looks like they have three people working in their agency and it seems like at least two of them are part time (split duties). This is nowhere near enough people to be able to manage this incident, but it is also a common size for a county agency.
Typically, once a local community is overwhelmed and they have called in mutual aid from surrounding towns, they turn to the state. Given the technical nature of this incident, various state level agencies joined the response including the Governor’s office, Ohio Emergency Management, and the Ohio EPA among others. This is normal and what is expected to happen in this type of situation. Again, most of this has happened behind closed doors so I can’t give you a play by play of who has done what, when but generally these agencies should be helping to coordinate the various aspects of the response.
Most often in an emergency there won’t be a federal presence. However, sometimes there is a specific legal or technical reason that requires federal involvement. For example, although mass shootings fall within the emergency category, because their nature the FBI is often involved in the investigation. It’s a similar situation here. From the start both the National Transportation Safety Board (NTSB) and the Environmental Protection Agency (EPA) went to Ohio because of the nature of the incident.
NTSB has a relatively narrow, although important, responsibility. They investigate the cause of the accident that led to the train derailment and provide recommended policy changes to prevent it from happening again. You can read their initial report here.
The EPA’s role is to oversee the cleanup and ensure that actions being taken by Norfolk Southern, are appropriate and in the best interest of the local community. The EPA should also begin testing air, soil, and water to begin a continuous process of assessment to determine if there are health concerns. Independent experts and watchdog organizations should confirm those test results and provide oversight to the EPA.
One point I will address because it is still impacting the response: I do think there is room for criticizing the EPA’s response in terms of testing. This is not my specific area of expertise but– just as is the case with hurricanes, earthquakes, and volcanoes – I listen to the hazard scientists. In this case a range of environmental toxicologists and the like have raised concerns about the limitations of the testing approach. I recommend following experts like Dr. Kim Garrett and Dr. Peter DeCarlo.
I’ll also mention that on February 17th the White House also announced that HHS and the CDC would deploy medical personnel and toxicologists to assist with public health testing and assessments. They joined state and local public officials who were already engaging in this work.
Where’s FEMA?
The Federal Emergency Management Agency (FEMA) is the agency we think of when a disaster happens. So, when you see a bad train derailment on TV you might expect to see FEMA on the ground in Ohio, managing the response. Yet, as you probably noticed, they haven’t been doing that in Ohio. As the response has carried on, the question “where’s FEMA??!?” has grown louder and jumped from social media to right-wing media, and finally to mainstream media.
Before I answer the question, though, I want to consider what people actually mean when they say, “where’s FEMA?” My interpretation is that they are asking why no one in navy blue windbreakers with FEMA lettering across their backs are walking down the streets. They are asking why FEMA isn’t handing out checks in the affected community. Perhaps even more so, they’re asking, why doesn’t the federal government care enough about us to send help? Why won’t the federal government validate that this terrible thing that is happening to us is, in fact, a disaster. Why isn’t someone coming to save the day? “Where’s FEMA?” is a loaded question that I think comes from pain, fear, anger, and a feeling of abandonment.
So, where is FEMA?
FEMA cannot just wander into a community uninvited. There’s a very specific process, outlined in the Stafford Act, which describes FEMA’s authority in times of disaster.
It is only once the state is overwhelmed by the event that the federal government becomes involved. The process for “activating” FEMA requires the governor of the state to request a disaster declaration from the White House. FEMA will help the state put together a preliminary damage assessment which outlines the impacts to the community and explains how the situation has overwhelmed the state government. Then the request goes to the White House, along with FEMA’s recommendation of whether they agree that a declaration should be made. Regardless of FEMA’s recommendation, there is one person and one person only who can decide to grant a declaration – the President.
If the President says, “no”, the state does have an opportunity to appeal but otherwise there’s not too much they can do about it. Options include organizing public pressure to reverse the decision or passing an entirely separate aid bill through congress. You could also have someone powerful in the party call and persuade the president otherwise like Kevin McCarthy did with Trump denied a declaration for a wildfire in California.
When a state receives a Presidential Disaster Declaration it can open the door for funding to cover public costs (e.g., fixing roads and bridges) and/or funding for individual citizens who were affected (e.g., temporary housing, repair costs). This is rarely enough money to actually cover the needed costs, and especially is not enough for individuals, but it is something. For a recent example of this see: Eastern Kentucky.
But here’s the plot twist – none of this has happened with this incident in Ohio. At no point has Governor DeWine requested a Presidential Disaster Declaration and at no point has the President denied a declaration request. This has been interpreted by the full range of media, and the general public, as being unforgivable failures of both DeWine and Biden (depending who you ask).
Actually, it’s completely appropriate that there’s been no disaster declaration.
Pick Your Hazard
There are some types of hazards that fall under the primary responsibility of federal agencies other than FEMA and use a policy pathway other than the Stafford Act. This isn’t to say FEMA isn’t involved or doesn’t play a role, but rather that other federal agencies have emergency management functions and authorities. For example, although the Stafford Act was eventually used during COVID, it was first declared as a Public Health Emergency by HHS.
At the federal level, the two major driving factors which determine the appropriate disaster policy pathway is the type of hazard and who is responsible.
In this case, there is no question that the EPA should be the federal agency in charge vis-à-vis the National Contingency Plan. I’m not going to get into this aspect here but I’ll point you to FEMA’s Oil and Chemical Incident Annex which, if you can believe it, is the most readable document I can find for you about the various roles and responsibilities.
The most important law to understand here is the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), better known as the Superfund Act, which was created decades ago in the wake of environmental contamination crises including Love Canal. Although I would love to nerd out with you, I simply don’t have time to get into the entire history and challenges with CERCLA but if you’re interested, do a Google! What’s important to know here is that from the very beginning it was clear that CERCLA was the appropriate law for overseeing the clean up because of both the nature of the hazard and because there was a specific company responsible.
The full NTSB investigation will take a while to be released however, the EPA has announced Norfolk Southern is legally responsible under CERCLA.
There really isn’t anything controversial happening here – it’s just a different disaster policy pathway than the public is used to seeing for events they perceive as disasters. It’s worth noting that the BP Oil Disaster never received a Presidential Disaster Declaration either. FEMA was involved in the response in various ways, but the BP response didn’t follow the Stafford Act policy pathway.
Incidentally, to my knowledge and with the exception of 9/11, I cannot think of, nor find, a single rail, boat, or plane incident in which a presidential disaster declaration was granted (happy to be corrected on this!). This makes sense, though, when you consider that the nature of these incidents makes them almost always emergencies, not disasters (as previously discussed) and because almost always a private company is responsible.
I explain this to demonstrate that FEMA & the Biden administration are not at all breaking precedent by saying that a declaration would not be given for this incident and DeWine is not wrong in not requesting one.
The Norfolk Southern of It All
The situation in Ohio isn’t like a tornado where there is no one person or organization at fault. This completely changes how the financial element of the response unfolds because it means the financial responsibility lies with Norfolk Southern, not government – and much of our disaster policy is centered around money.
When a private company is responsible for the disaster you also usually need them to be involved in the response. The reason for this is that
1. They are responsible for the clean-up,
2. They are financially responsible, and
3. They often have information and technical expertise that is needed to effectively respond.
There are some obvious problems with allowing a private company to be involved in its own response. As I, and others, said often during the response to the BP disaster, “it’s like putting the murder in charge of the murder investigation”. Private companies, especially ones that are the cause of a disaster have every incentive to lie and mislead the public because they are driven by making a profit. They have every incentive to try and protect their brand by downplaying and hiding the harm they have caused. It is for this reason that these types of events have an added layer of complexity. Emergency management must be especially careful about not bowing to the responsible party (and maintaining their communication and relationship with the public, as discussed).
There’s a whole conversation to be had here about the role of private companies in the response to a disaster that they have caused. I absolutely believe more stringent laws and practices are desperately needed to protect the public in these cases. Further, this is closely related to the “no natural disaster” movement and demonstrates why correctly identifying the causes of disasters perceived to be “natural” could one day have enormous legal implications.
This also supports why FEMA should not, and really cannot, be involved via the Stafford Act. FEMA must follow a law that says they cannot “duplicate relief”. This is a real logistical pain for disaster survivors, tbh, but the intent behind it is to protect taxpayer dollars. What this means is that if someone is going to receive aid from a source other than FEMA, then FEMA can’t also duplicate that aid. So, for example, if your house floods and you have flood insurance that covers all your repair expenses then FEMA is not going to also give you money to help with repairs. The theory behind this law is good. In practice, it creates a paperwork nightmare, slows the recovery process, and sometimes leads to FEMA sending letters to unsuspecting disaster survivors that they must “pay them back”. Not great.
In this case, because there is a single responsible party (i.e., Norfolk Southern), any financial aid FEMA gives would be considered “duplicated relief” and likely, in the future, would be told to take the money back from residents. In short – because Norfolk Southern is financially responsible, a presidential disaster declaration wouldn’t financially help Ohio. [If Congress changed a few laws we could have FEMA distribute aid through individual assistance and then have Norfolk Southern pay FEMA back but I’ve never seen anyone suggest doing so.]
Now, this isn’t to say FEMA has been sitting around twiddling its thumbs. After Governor DeWine asked FEMA for help, they announced on Friday February 17th that they would send in a senior federal response official along with an Incident Management Assistance Team (IMAT). To be clear, this is not happening under the authority of a Presidential Declaration but rather is being considered part of the “technical assistance” that FEMA regularly provides to communities across the country on a variety of emergency management-related issues. FEMA said these folks would be assisting with the coordination of the response and help put together a long-term needs assessment for the affected communities. This will hopefully help but is also completely different than FEMA being “activated” via a Presidential Disaster Declaration.
I will also add that it is my understanding the representatives from FEMA Region 5 have been in communication with Ohio State Emergency Management (and presumably local emergency management agencies) from the start. I do not know the details of that specific involvement because it hasn’t been reported or discussed publicly. FEMA is not ignoring what is happening in Ohio. They are working within the bounds of the law and wishes of the state.
The Politics
The reason I’ve gone through the Stafford Act in great detail, despite it not being used in this incident, is because politicians have been using the public’s lack of understanding of the disaster declaration process to confuse the hell out of everyone and obscure their own responsibilities, and try to win political points.
The politicians involved aren’t just responding to the impacts from the derailment, they’re responding to protect themselves politically. None of them want to be blamed for what has happened, of course they all hold part of that blame, so many decisions that are being made seem to be motivated by political theater, more so than driven by what the actual unmet needs are on the ground.
Technically there is only one reason a disaster declaration hasn’t been given and that is simply because Governor DeWine has, at no point, requested the disaster declaration (which again, is the appropriate course of action).
However, from the way he was Tweeting, you’d be forgiven if you thought he had.
He, or whoever wrote this tweet, selected their words very carefully. Media outlets, representing both political viewpoints, used the confusion to falsely push their own narratives.
Headlines like this one from Fox News made the rounds and spurred widespread misinformation about FEMA online.
This misinformation is still spreading. As late as February 23rd Lever News published an article without any context to the following claim:
When asked why he had not requested a disaster declaration, Governor DeWine has persistently claimed it is because FEMA told him he will not receive one, rather than explaining that it’s because this event falls under a different disaster policy pathway. This is all a bit disingenuous for two reasons.
First, FEMA can say whatever they want about whether a community would or would not receive a declaration. They aren’t the ones who issue the declaration – only the President does that. If Governor DeWine actually believed that the resources of his state were overwhelmed and that FEMA had the ability to meet the needs of his constituents then he has an obligation to request a disaster declaration. At that point, if President Biden said, “no” (which, he likely would) then that’s on Biden.
Second, I’d be surprised if DeWine, who has overseen three Presidential Declared Disasters in Ohio since taking office, is unfamiliar with why a declaration would probably be denied. That and the fact that DeWine hasn’t actually requested suggests to me that he very well knows that a disaster declaration is not what is needed in Ohio at this time.
Governor DeWine is not the only politician trying to capitalize on the public’s lack of knowledge about disaster policy. On Feb 17th Senator Hawley (R-MO) sent a letter to Senator Gary Peters requesting the Homeland Security Committee hold a hearing to investigate why FEMA wasn’t helping. They are more than welcome to hold a hearing, but it’ll only be about 5 minutes long as witness after witness just says, “because of the Stafford Act and CERCLA”.
Perhaps it is the case that Senator Hawley, a constitutional lawyer, is unfamiliar with the Stafford Act. If so, it suggests he is wholly unqualified to be sitting on the Homeland Security Committee, which has oversight of FEMA. Presumably senators should have at least a rudimentary understanding of the single most important piece of legislation related to the agencies they oversee. Of course, the other option here is that he does understand why Governor DeWine has elected not to request a declaration, and why President Biden would likely decline such a request, and is instead choosing to mislead the public for personal political gain.
The derailment has highlighted in stark detail the ways that politicians use disasters to their political advantage. One of the reasons they’re able to do this so well is because there is a persistent misunderstanding about what FEMA is, who they are, and what they can do legally. Emergency management laws and policies are pretty obscure, and the average person does not encounter them in any meaningful way in the course of their day-to-day life.
The widespread illiteracy of emergency management law and policy is extremely dangerous. It means that local communities don’t understand how to protect themselves, what resources are or are not available to them, and how to access them. It means that journalists often miss critical stories or misunderstand how a response is unfolding. It means that Congress passes laws that make the problems with our emergency management system even worse.
Unfortunately, this is the perfect example of why this is such a problem. It has contributed to a hostile environment, contributed to mistrust, and distracted communication efforts. Instead of everyone focusing their attention on testing and ensuring homes are safe to return to journalists, politicians, and the public have been spinning themselves in a circle over a declaration process that is irrelevant in this situation.
As a disaster policy expert and I have a responsibility to speak up when politicians use disaster policy to manipulate the public. Perhaps, the confusion is the point. If we’re all too busy yelling at each other then we’re not spending our time organizing and holding Norfolk Southern or the politicians who haven’t passed better safety regulations accountable.
What Happens Next?
History tells us it is appropriate for us to continue to question and hold accountable both the actions of Norfolk Southern and government officials. However, we should be doing that in an informed and data-driven way because there is the very real possibility – and it’s already happened – that we can make the crisis worse if we are, even unintentionally spreading misinformation.
There are a lot of emotions flying around the affected community right now – as you watch interviews with residents you hear that they are angry, tired, frustrated, and scared – about what has happened and what will happen in the future. Sharing hypothetical future worst-case scenarios, exaggerating the damage that has been done, or peddling conspiracy theories doesn’t help local communities. It creates an ecosystem of confusion and fear – we already have enough of that without random non-experts on the internet adding to it.
I think it’s also important to understand the context within which this event has unfolded. The Norfolk Southern Ohio Train derailment has happened:
in a country with a long history of communities being contaminated and lied to by private industry;
in a country where public health and elected officials have eroded the public’s trust in government;
in a country where local media has been systematically weakened and the public has been taught to villainies national media;
in a country where social media companies have persistently failed to stop the spread of misinformation and conspiracies;
in a country where money from corporations has been allowed to influence the actions of politicians;
in a country where profits are prioritized over safety; and
in a country where we have dramatically underinvested in emergency management.
What I hope happens now, for the sake of the affected communities, is that everyone takes a step back — stops using this as a political football — and focuses fully on the issue of testing and engage in a practice of radical transparency with the public.
Policy Change, Baby
I am not defending the way our disaster policy has been designed, but rather explaining how it works. If you do not like the way this response unfolded, if you don’t like the way this system is designed, if you don’t like that we’re allowing companies who make an unreasonable profit to destroy our health and communities — then you need to help us change this. And, there are ways to change this.
Most obvious are railway safety reforms which a lot of attention is finally being given to. I’ll skip those here and focus on two emergency management ones: investment in local emergency management and the creation of a National Disaster Safety Board.
As I noted earlier, this is the type of incident that should have a primarily local response. However, in order for any local community to be effective in this situation there has to be a long-term investment. Across the county most emergency management agencies only have a part time emergency manager. Some even have only a volunteer emergency manager. This is wildly irresponsible. We need robust, independent local emergency management agencies that have enough people and resources to do effective mitigation, preparedness, response, and recovery for all-hazards.
This incident has brought the NTSB back into the public eye. It also has illustrated the need for something more than the NTSB. In the previous Congress a bill had been introduced, and had bi-partisan support, for the creation of a National Disaster Safety Board. The NDSB would be structured similarly to NTSB in that they would be an independent body that investigated disasters. The NTSB has a very narrow mission in looking at the cause of this accident, but the rest of what I’ve talked about in this blog will fall outside their investigation. Agencies will all do some kind of “after action report” but as anyone in emergency management will tell you, these are problematic as they either don’t accurately capture what occurred, or don’t lead to any changes. Perhaps there will be some broader congressional investigation per the request of Senator Hawley but it’s hard to imagine that being anything more than an opportunity for more political grandstanding. Enter the National Disaster Safety Board.
Finally, although this response has been ineffective and inefficient, there actually is not a single issue raised here that is unprecedented. Every single one has happened before in another emergency, disaster, or catastrophe. While that is frustrating as hell, it’s also the logical outcome because Congress has persistently failed to effectively and comprehensively reform emergency management. We can do that literally anytime Congress gets onboard. If you want to learn more about that big picture view of this, you can read my book Disasterology: Dispatches from The Frontlines of The Climate Crisis.