The President declared COVID-19 a National Emergency on Friday, invoking authorities across the federal government and providing funding for federal departments and agencies to support state and local response. In concert with the COVID-19 National Emergency, he also issued an Emergency Declaration pursuant to the Stafford Act to assist state, local, tribal, territorial governments and other eligible entities with the health and safety actions.
The Stafford Act is the primary authority for the Federal Emergency Management Agency (FEMA) to provide a wide range of financial support to first responders and communities when the needs of the emergency or disaster exceed the capabilities of the state, local, tribal, or territorial governments. FEMA may also, either directly or through other federal departments, provide operational support to these same governments.
Under the COVID-19 Emergency, FEMA can reimburse state, local, tribal, or territorial governments for emergency protective measures required by public health officials that do not duplicate assistance provided by the U.S. Department of Health and Human Services (HHS) or other federal agencies. As with most Stafford Act declarations, state, local, tribal and territorial governments can only be reimbursed for 75 percent of their costs. The president can, upon request, increase the reimbursement to 100 percent.
The National Emergency and Stafford Act declarations reinforce federal support to HHS in its role as the lead federal agency for the U.S. government’s response to COVID-19 and does not impact measures authorized under other federal statutes.
FEMA Stafford Act funding primarily comes from the Disaster Relief Fund, or DRF, which Congress funds annually to cover the expenses of presidentially declared major disasters and emergencies. An emergency declaration is limited in scope and the available financial resources. First, an emergency is not a major disaster. Major disasters, defined as a natural catastrophe (e.g., earthquake, hurricane), receive the largest amount of funds available in the DRF and have a wider scope of reimbursable expenses. Also, an emergency is limited to $5 million unless the president notifies Congress that additional funds are needed and will be expended. Reimbursable activities under an emergency typically include emergency protective measures such as the activation of State Emergency Operations Centers, National Guard costs, law enforcement and other measures necessary to protect public health and safety.
The DRF currently has nearly $41.6 billion for disasters, with less $7.2 billion committed for past and expected disaster needs. For emergency needs, there is only $600 million, less $200 million of commitments, unless additional funds are added by Congress. Thus, FEMA will only be able to provide about $400 million for COVID-19 to impacted communities unless Congress add more funds or FEMA exercises a congressionally provided option for a onetime transfer of $100 million to the emergency account.
Given the president’s comment that his National Emergency Declaration frees up $50 billion, it would appear the source for this amount is not the DRF alone. Any funds taken from the DRF will limit FEMA’s funding for future emergencies and major disasters, along with the significant and wide range of recovery and mitigation work that remains from the many past disasters including recent hurricanes Michael, Florence, Maria, Irma and Harvey, and the California wildfires. And the 2020 hurricane season will be upon us in just two and a half months.
The president, in his letter to Acting Homeland Security Secretary Chad Wolf, Treasury Secretary Steve Mnuchin, Health and Human Services Secretary Alex Azar, and FEMA Administrator Peter Gaynor dated March 13, 2020, encouraged governors to request major-disaster declarations for COVID-19. “I believe that the disaster is of such severity and magnitude nationwide that requests for a declaration of a major disaster as set forth in section 401(a) of the Stafford Act may be appropriate,” he said. “I encourage all governors and tribal leaders to consider requesting Federal assistance under this provision of the Stafford Act, pursuant to the statutory criteria. I stand ready to expeditiously consider any such request.” When will we see the first governor’s request for a major presidential disaster for COVID-19, which will be precedent setting? If major disasters are declared the DRF funds will be further strained and additional congressional funding will be required.
Fully leveraging FEMA with its extensive and in-depth disaster and emergency management experience and operational coordination and leadership capabilities, including the National Response Coordination Center, is an invaluable resource for the COVID-19 response. However, given the significant level of resources needed to timely and effectively address COVID-19 as a nation, it’s important to note that FEMA will require additional funding from Congress to meet the demands that COVID-19 presents.