Subsidiarity and Solidarity as Guiding Principles in U.S. and German Disaster Response Law

Der Aufsatz vergleicht die grundlegenden organisationsrechtlichen Regelungen des deutschen und US-amerikanischen Katastrophenschutzrechts. Dabei wird der Frage nachgegangen, inwieweit beide Regelungsbereiche durch die Prinzipien der Subsidiarität und Solidarität gekennzeichnet sind.

1. Introduction

Since the beginning of mankind, disasters have presented a recurring, existential threat to the lives and health of humans. Certainly, disaster response is not just part of the history of humanity. On the contrary, combating disasters has become one of the biggest challenges for societies in the present-day world and it will presumably remain a challenge in the future. The forces of nature – aggravated by climate change – are hitting the social infrastructure more than ever and threaten mankind regularly in an extraordinary way. Moreover, advancements in technology have adverse effects by resulting in technological disasters or, in the least, raising man’s dependency on technological infrastructure and human’s vulnerability during disturbances. Finally, “man-made” damages can be caused by man’s negligent or intentional behavior, which always represents a noteworthy “self-made” risk-factor. This non-exhaustive enumeration demonstrates present and future challenges for nations all over the world. In view of a State’s responsibility to protect its people, defense against disasters is one of the State’s fundamental tasks.1 Performing that task turns out to be a legal challenge: Both legislature and execution of disaster response counteract special legal problems that result from the fact that disasters are cross-border issues,2 i.e. they are not limited by man-made boundaries and normally fall under several jurisdictions.3 Therefore, the endeavors of the International Federation of Red Cross and Red Crescent Societies to develop International Disaster Response Laws are an important contribution to the resolution of problems caused by the interjurisdictional nature of disasters.4 Furthermore, legal problems do not only result from multiple territorial jurisdictions, but also from the fact that combating disasters can not be guaranteed by only one sector agency. Instead, it requires the cooperation of almost all jurisdictions.5 Disaster handling is a collective national challenge and therefore necessitates cooperative action of actors in horizontal as well as in vertical relations. The latter does not only refer to the relationship between state and local governments, but also includes the role of the federal government during disasters. In the aftermath of Hurricane Katrina, the federal government was heavily indicted of a faulty disaster response. Such accusations of failed civil protection are serious and attest the political dimension of disasters and their governmental response.6 Thus, an analysis of disaster response law deserves a differentiated approach: It is important to distinguish whether the current legal order provides regulations for an overall responsibility of the federal government or if increasing federal power just represents a suggestion of legal policy. This study analyzes the current legal relationships between administrative actors in disaster response in both the U.S.A., using the example of California, and in Germany. The comparative research of national systems is limited to domestic disaster response; civil defense law regarding a state of war is excluded.

2. Local and State Disaster Response

Regarding disaster response law on the state level it is particularly noticeable that combating disasters is by no means automatically just a task of state government. On the contrary, several aspects indicate that first of all local governments are in charge of managing threats that can also be classified as disasters. In the U.S. disaster response law, as in the California Emergency Services Act7, the existence of several levels of “state of emergencies” like “local emergency” and a statewide “state of emergency” indicates a differentiated distribution of responsibilities. According to California Emergency Services Act § 8558(c), a “local emergency” means the “existence of conditions of disaster or of extreme peril to safety of persons and property […] which are or are likely to be beyond the control of the services, personnel, equipment, and facilities of that political subdivision and require the combined forces of other political subdivisions to combat […]” (emphasis added). A local emergency may be declared only by the governing body of a city, county, city and county or by an official designated by ordinance adopted by that governing body.8 During a duly proclaimed state of “local emergency”, the affected local government is entitled to request for provision of mutual aid by political subdivisions9 and by state agencies10. Therefore, the state’s role is limited to supportive functions for political subdivisions, when a “local emergency” is declared. First of all, the affected local government is in charge of combating the disaster and is authorized to request for assistance therefor. In contrast, responsibilities change in a statewide “state of emergency”, which pursuant to California Emergency Services Act § 8558(b), exists in conditions of a disaster or extreme peril to the safety of persons or property and “which by reason of their magnitude, are or are likely to be beyond the control […] of any single county, city and county or city and require the combined forces of a mutual aid region or regions to combat […]” (emphasis added). During a “state of emergency”, the governor has – among other things – complete authority over all state agencies of the state government and “the right to exercise within the area designated all police power”.11 However, a governor’s power to act self-contained is limited by law: Only if the affected political subdivision is overwhelmed with disaster response is the Governor allowed to intercede. Thus, the overwhelmed state of the local government presents a legal requirement for the intervention of the state government. In reverse, it can be said that local authorities are the first level of jurisdiction for emergency and disaster response. This assessment is underlined by the regular requirement of a request for a governor’s declaration of a “state of emergency”12 by the mayor or chairman of board. Finally, the governor has the right to ignore the absence of a request only if he finds a local authority inadequate to cope with the emergency.13

The German Disaster Response Law contains a similar but not identical framework. State disaster response statutes assign the primary responsibility for disaster response to counties and independent cities,14 which are political subdivisions enjoying county status. In performing disaster response tasks the local governments (“Kreise” and “kreisfreie Städte”) are designated as “lower disaster response authorities”, which are the first level of jurisdiction for disaster management.15 The local authorities assess an occurred threat or damage and “recognize a disaster”16 or – in a different terminology – trigger a “disaster alert”17. Legal requirements for that legal act are similar to the U.S. “declaration of a state of emergency”. In particular, if the dependent communities18 (“Gemeinden”) are overwhelmed with their law enforcement and fire defense responsibilities a “state of disaster” can be declared. However, most disaster response laws do not require overwhelmed dependent communities to trigger the responsibility of lower disaster response authorities. The crucial aspect that constitutes their responsibility for emergency response is the necessity of their unitary command.19 The primary jurisdiction of lower disaster response authorities changes in the case of an intervention by upper disaster response authorities. These are – insofar as existing – districts or superior authorities on the state government level like State Ministries of the Interior. Requirements for their intervention vary from state to state. Some disaster response statutes totally abandon any requirements.20 In most cases, the right of upper disaster response authorities to act must be “necessary” for an effective disaster response21 respectively these authorities can only intervene if “more than one lower disaster response authority” is affected22 or if a “lower disaster response authority is incapable to cope with an occurred disaster”23. In contrast to U.S. disaster response law, intervention of german higher authorities does not depend on a formal, special declaration of a “state of emergency”. The rules of disaster law are triggered by one declaration, which is regularly proclaimed by the primary responsible lower disaster response authority. In the case of intervention the upper disaster response authority only has to notify the inferior authorities of its involvement.

Comparing disaster response law in California and in the “Länder” (States) of the Federal Republic of Germany makes the common guiding principle of subsidiarity noticeable. Subsidiarity in disaster law means that a higher instance shall only act self-authorized when effective disaster response cannot be sufficiently achieved by lower instances. Considering the fact that public administration is structured in multiple levels, the principle of subsidiarity contains an “as-located-as-possible” strategy24 regarding the distribution of responsibilities for disaster response. In other words, the local governments are the first response for emergency and disaster management. That legal position coincides with the opinion of emergency response experts that emergencies should be combated immediately by local “first responders” to avoid a spread of the threat. This is obvious in the case of a forest fire, which should be contained as soon as possible.25 Nevertheless, “first responders” can become overwhelmed so that the intervention of states may become necessary. Their action depends on the legal requirement that the disaster is “beyond the control” of the political subdivision that is primarily responsible. To ensure legal clarity the modification of responsibilities necessitates a declaration or – in German law – at least a notification by the higher instance. Thus, both the disaster response law of California and the German states pursue a bottom-up strategy.

3. Federal Disaster Relief and Emergency Assistance

Considering the principle of federalism in both the U.S.A and Germany, a comprehensive analysis of disaster law must include the legal relationship between states and the federal government. Indeed, previous disasters confirm that federal powers regularly participate in combating threats.26 The U.S. federal government’s role in handling disasters is mainly determined by the Robert T. Stafford Disaster Relief and Emergency Assistance Act27. Several regulations of the Stafford Act indicate that the federal government’s role is subsidiary in relation to that of the states. First of all, that assumption is corroborated by the definitions of an “emergency” and a “major disaster”. The special purpose of necessary federal assistance in the case of an emergency or major disaster is to supplement state and local governments.28 On this note, the procedural rules for a president’s declaration of an emergency or a disaster require that “effective response is beyond the capabilities of the State and the affected local governments and that Federal assistance is necessary” (emphasis added).29 Furthermore, declarations of an emergency or a disaster under the Stafford Act necessitate that the “Governor takes appropriate response action under State law”.30 Finally, similar to the relationship between states and locals the provision of federal disaster relief or emergency response under a “state of emergency” or a “state of major disaster” needs a previous request for a declaration, which shall be made by the Governor.31 That background justifies the conclusion of subsidiary responsibility of the federal government regarding disaster and emergency response. In the case of a presidential declaration of a “state of disaster”, the federal government’s involvement does not replace the state’s responsibility for disaster response. In contrast, states keep the primary responsible jurisdictions for disaster management. Supplemental federal participation is not a substitute for the state’s responsibility. To make that legal position clear, it is essential to distinguish between the different tasks of the states and federal government by using different terms: On the one hand, states and local governments provide disaster response and on the other hand the federal government administrates supplemental disaster relief or emergency assistance. Only if the emergency involves a subject area for which the United States exercises exclusive or preeminent authority – like attacks on federal buildings, attacks with an impact on national defense, incidents involving nuclear materials – the president can declare an “emergency” without a request of a state governor.32

In the Federal Republic of Germany, both state and federal powers are regularly involved in disaster management. Basically, their competences are distributed by constitutional law. According to the fundamental principle of Art. 30 and 70 of the Basic Law, disaster response is first and foremost part of states´ legislature and execution.33 Due to the necessity of state’s support by the federal government, Art. 35 Para. 2 Clause 3 and Para. 3 of the Basic Law determines that the federal government is entitled to provide disaster relief in cases of natural catastrophes and major disasters. However, the legal requirements and consequences of federal involvement in disaster management vary. Crucial is the perils extent: As long as the occurred disaster is limited to one state the provision of federal disaster relief require a request by the affected state for help (Art. 35 Para. 2 Clause 2 of the Basic Law). Only in cases of an interstate threat, which is caused by a natural catastrophe or a major disaster, is the federal government authorized to deploy on its own initiative Federal Police or the Military (Art. 35 Para. 3 of the Basic Law). The exceptionally extensive coverage of an occurred disaster warrants that the federal government takes initiative without a request and permission of the affected states.34 Finally, according to Federal Civil protection and Disaster Relief Act35, the Federal Office of Civil Protection and Disaster Assistance36 is entitled to coordinate interstate disaster response on request and upon consultation with the States.37 In both variations – one-state-limited and interstate peril – the provision of Federal Disaster Relief does not necessitate a formal declaration of a “state of emergency” or “state of disaster” by the federal government.

Differing from U.S. disaster law, federal disaster relief in Germany does not require that the state resources have been exhausted as long as the states request and allow the participation of federal power.38 Only the deployment of federal police and federal armed forces on own initiative requires that it is “necessary for an effective disaster response”. In addition, when assisting the states according to Art. 35 Para. 2 Clause 2 of the Basic Law, the federal government performs a state’s task.39 Hence, federal agencies act based on state law and the disaster response instructions of state authorities.40 So in both U.S. and German disaster law, disaster management falls under the primary responsibility of the local or state government. In terms of subsidiarity, the lower level – the state and local governments – are foremost in charge for disaster management and protecting the civil population against disasters.

4. Strengthening Disaster Response with Solidarity Obligations

The participation of federal power in disaster management was identified as a supplement to state disaster response. However, the Stafford Act does not only affirm the state’s primary responsibility. Additionally, the Stafford Act constitutes another legal principle involving state and federal government: the principle of solidarity. The federal government’s contribution to state disaster response is not only a voluntary act, but also a statutory duty. At first glance, it can be assumed that the goal of the Stafford Act is to just entitle the federal government to provide assistance to states in crisis. In this spirit definitions describe which situations “warrant major disaster assistance”,41 procedural rules of declaration specify when “the President may declare under this Act that a major disaster or emergency exists”42, and authorizations regulate that “the President may direct any Federal Agency”43 (emphasis added). However, the purpose of federal assistance is to alleviate the suffering and damage which result from disasters.44 Therefore if federal assistance is “necessary”45 to achieve that aim, and other legal requirements are fulfilled, the federal government must provide assistance at least to eliminate any threats to peoples´ lives and health. Similar to German disaster relief law, the federal government’s obligation to assist states in crisis results from the authorization of the state to request for assistance. Such a request is not only a petition, but an order that can only be ignored if federal capacities are bound to perform federal tasks.46 Irrespective of a voluntary or obligated assistance of the Federal government, the Stafford-Act and Art. 35 Para. 2 Clause 2 of the Basic Law pursue solidarity between the federal government and the States and represent a special example of cooperative federalism.

Similar duties of solidarity can also be found in the vertical relationship between states and political subdivisions. The Californian Emergency Services Act authorizes state agencies to provide mutual aid, including personnel, equipment, and other available resources to assist political subdivisions.47 Also disaster response acts of the German states mostly state a duty of assistance of all state agencies.48 Finally, in both Germany and in the U.S., intrastate solidarity contains horizontal assistance obligations. Based on statutes and compacts local governments are obliged to provide mutual aid to other local governments. At this juncture, German disaster assistance law differentiates sometimes between “Nachbarschaftshilfe” and “überörtliche Hilfe”. The first refers to the provision of assistance to direct neighbors49 and therefore can be translated as “neighbour aid”. On the other hand “überörtliche Hilfe” stands for an “over regional aid” to political subdivisions within a state which have no common boundaries.50 In the end, it is only a terminological difference because both include horizontal assistance obligations as “mutual aid between political subdivisions” in the U.S. The final thing that German and U.S. disaster mutual aid law have in common is that the horizontal obligations are triggered by the declaration of a “state of (local) disaster” or a “state of local emergency”.

The disaster response related system of solidarity is completed by interstate assistance obligations. Based on state law, states are obligated to render aid to outside areas stricken by an emergency or disaster. By way of example, § 8616 California Emergency Management Act states in regard to regional response that it “shall be the duty of public officials to cooperate to the fullest possible extent”. In Germany, interstate solidarity even attaches constitutional status: Art. 35 Para. 2 Clause 2 of the Basic Law grants the states the right to request for outside assistance, which correlates with a legal duty of requested states to comply with the request.51 On enforcing regional response, U.S. and German disaster law go different ways: On the one hand, horizontal solidarity on the state level in the U.S.A. is substantiated by state emergency management assistance compacts. On the other hand, pursuant to Art. 35 Para. 3 of the Basic Law, the German federal government is entitled to issue an instruction to states to render aid to states affected by disasters.

By stating mutual aid obligations, disaster law strengthens the effectiveness of disaster response. Considering the fact that combating disasters necessitates an interjurisdictional approach solidarity clauses enforce governmental power. Moreover, solidarity obligations on the horizontal level extend the possible reactions of the responsible governments. Regarding regional aid, local governments have the flexibility to request for assistance on their own level, thus avoiding the intervention of higher instances.

5. Conclusion

The elaborated U.S. and German disaster response law showed the basic system of administrative cooperation in combating serious threats to humans. Since disasters can require a multijurisdictional approach, disaster response generally can be classified as a collective national challenge. To cope with that challenge, the current legal order provides several instruments to enhance government reactions to disasters. In general, both the U.S. and German disaster response law are affected by the guiding principles of subsidiarity and solidarity, which surely does not mean that there are no differences in detail. Notwithstanding, the outlined similarities concerning the ruling principles are impressive.

  1. 1. See Kloepfer, Rechtliche Grundprobleme des Katastrophenschutzes, in: Dolde/Sellner (Hrsg.), Festschrift für Dieter Sellner, 2010, 391 ff.
  2. 2. See Walus, Katastrophenschutz made by EU, Bevölkerungsschutz 1/2010, 22 ff.
  3. 3. See Farber/Chen/Verchick/Sun, Disaster Law and Policy, 2010, 75.
  4. 4. See http://www.ifrc.org/en/what-we-do/idrl/about-idrl/
  5. 5. See Walus, Katastrophennotstand in Berlin: Strukturen und Kompetenzkonflikte, Landes- und Kommunalverwaltung 4/2010, 152 (156).
  6. 6. http://www.hu-berlin.de/pr/publikationen/tsp/ss09/kloepfer/
  7. 7. California Code – Chapter 7: California Emergency Services Act [§§ 8550. - 8668.].
  8. 8. See Cal Emergency Services Act § 8630(a).
  9. 9. See Cal Emergency Services Act § 8631.
  10. 10. See Cal Emergency Services Act § 8632.
  11. 11. See Cal Emergency Services Act § 8627.
  12. 12. See Cal Emergency Services Act § 8625(b).
  13. 13. See for Governor’s “self-authorization” Cal Emergency Services Act § 8625(c).
  14. 14. See Hessisches Gesetz über den Brandschutz, die Allgemeine Hilfe und den Katastrophenschutz §§ 25 Para. 1 and 35 Para. 2.
  15. 15. See Niedersächsisches Katastrophenschutzgesetz § 2 Para. 1.
  16. 16. See Kloepfer, Katastrophenschutzrecht – Strukturen und Grundfragen, Verwaltungsarchiv 2007, 163 (192).
  17. 17. See Walus, (fn. 5), 152 (155).
  18. 18. See Gesetz über den Brandschutz, die Hilfeleistung und den Katastrophenschutz des Landes Brandenburg § 1 Para. 2.
  19. 19. See Kloepfer, (fn. 16), 163 (168).
  20. 20. See Bayerisches Katastrophenschutzgesetz Art. 2 Para. 3 Clause 1.
  21. 21. Sächsisches Brandschutz-, Rettungsdienst- und Katastrophenschutzgesetz § 8 Para. 3.
  22. 22. Niedersächsisches Katastrophenschutzgesetz § 27 Para. 2.
  23. 23. Katastrophenschutzgesetz des Landes Sachsen-Anhalt § 4 Para. 3.
  24. 24. See Farber/Chen/Verchick/Sun, (fn. 3), 144.
  25. 25. See Schmidt, Der europäische Bevölkerungsschutz aus deutscher Perspektive betrachtet, in: Bundesamt für Bevölkerungsschutz und Katastrophenhilfe (Hrsg.), Festschrift 50 Jahre Zivil- und Bevölkerungsschutz in Deutschland, 2008, S. 110; see Unger, Bevölkerungsschutz – Spannungsfeld Subsidiarität, Notfallvorsorge 2/2007, 6 (7); see Walus, Europäischer Katastrophenschutz, Europarecht 4/2010, 565 ff. regarding to strengthening member states´ disaster response capacities instead of the establishment of own capacities of the European Union.
  26. 26. See v.Danwitz, in: v.Mangoldt/Klein/Starck (Hrsg.), GG Kommentar, 2010, Art. 35 margin number 74.
  27. 27. Robert T. Stafford Disaster Relief and Emergency Assistance Act, Title 42. U.S.C. 5121-5207 – Chapter 68.
  28. 28. See Stafford-Act § 5122(1) and (2).
  29. 29. See Stafford-Act §§ 5170 and 5191(a); see also Homeland Security Presidential Directive 5: Management of Domestic Incidents (HSPD-5): “the resources of State and local authorities are overwhelmed”.
  30. 30. See Stafford-Act § 5170.
  31. 31. See Stafford-Act § 5170; see Abbott/Hetzel, Homeland Security and Emergency Management, 2010, 5.
  32. 32. See Abbott/Hetzel, (fn. 31), 6.
  33. 33. See Walus, Pandemie und Katastrophennotstand: Zuständigkeitsverteilung und Kompetenzmängel des Bundes, Die Öffentliche Verwaltung 3/2010, 127 (130).
  34. 34. See Maunz, in: Maunz/Dürig (Hrsg.), GG Kommentar, 2013, Art. 35 margin number 21.
  35. 35. Gesetz über den Zivilschutz und die Katastrophenhilfe des Bundes (ZSKG).
  36. 36. http://www.bbk.bund.de
  37. 37. ZSKG § 16 Para. 2; see Meyer-Teschendorf, Fortentwicklung der Rechtsgrundlagen für den Bevölkerungsschutz, DVBl 2009, 1221 (1226).
  38. 38. Other opinion v.Danwitz, (fn. 26), Art. 35 margin number 70.
  39. 39. See BVerfGE 115, 118 (145).
  40. 40. See BVerfGE 115, 118 (146); see Maunz, (fn. 34), Art.35 margin number 21; see v.Danwitz, (fn. 26), Art. 35 margin number 75.
  41. 41. Stafford-Act § 5122.
  42. 42. Stafford-Act § 5170.
  43. 43. Stafford-Act § 5170(a).
  44. 44. Stafford-Act § 5121.
  45. 45. Stafford-Act § 5170.
  46. 46. See Maunz, (fn. 34), Art.35 margin number 17.
  47. 47. See Cal Emergency Services Act § 8632.
  48. 48. See Art. 7 Para. 3 Bayerisches Katastrophenschutzgesetz.
  49. 49. Katastrophenschutzgesetz des Landes Sachsen-Anhalt Art. 17 Para. 1.
  50. 50. Katastrophenschutzgesetz des Landes Sachsen-Anhalt Art. 17 Para. 2.
  51. 51. See Maunz, (fn. 34), Art.35 margin number 17.
Literaturverzeichnis
Zitierte Literatur: 
  • Abbott/Hetzel, Homeland Security and Emergency Management, 2010, 2nd. edition
  • Farber/Chen/Verchick/Sun, Disaster Law and Policy, 2010, 2nd. edition, Aspen Publisher
  • Kloepfer, Rechtliche Grundprobleme des Katastrophenschutzes, in: Dolde/Sellner (Hrsg.), Festschrift für Dieter Sellner, 2010, 391 ff.
  • Kloepfer, Katastrophenschutzrecht – Strukturen und Grundfragen, Verwaltungsarchiv 2007, 163 ff.
  • v.Mangoldt/Klein/Starck (Hrsg.), Kommentar zum Grundgesetz, 2010, 6. Aufl., (zit: v. Danwitz, in: v. Mangoldt/Klein/Starck)
  • Maunz/Dürig (Hrsg.), Kommentar zum Grundgesetz, 2013, 67. Ergänzungslieferung (zit. Maunz, in: Maunz/Dürig)
  • Meyer-Teschendorf, Fortentwicklung der Rechtsgrundlagen für den Bevölkerungsschutz, DVBl 2009, 1221 ff.
  • Schmidt, Der europäische Bevölkerungsschutz aus deutscher Perspektive betrachtet, in: Bundesamt für Bevölkerungsschutz und Katastrophenhilfe (Hrsg.), Festschrift 50 Jahre Zivil- und Bevölkerungsschutz in Deutschland, 2008, S. 110
  • Unger, Bevölkerungsschutz – Spannungsfeld Subsidiarität, Notfallvorsorge 2/2007, 6 ff.
  • Walus, Katastrophenschutz made by EU, Bevölkerungsschutz 1/2010, 22 ff.
  • Walus, Katastrophennotstand in Berlin: Strukturen und Kompetenzkonflikte, Landes- und Kommunalverwaltung 4/2010, 152 ff.
  • Walus, Europäischer Katastrophenschutz - Möglichkeiten und Grenzen im Lichte des Vertrags von Lissabon, Europarecht 4/2010, 565 ff.
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