Every year, by law, the United States Commission on Civil Rights publishes a statutory enforcement report. This report is meant to keep Congress and the President informed about ongoing civil rights law enforcement efforts in the U.S. Past topics have included minority voting rights access (2018) and sexual assault in the military (2013). For 2022, the Commission took up the 2017 hurricane season, and the Federal Emergency Management Agency’s (FEMA) responses in Texas and Puerto Rico. This is the first time the Commission has taken up the civil rights implications of disaster response.

Some context is important. The 2017 hurricane season was one of the worst in recent history, with three major storms hitting largely similar geographic regions around the Gulf coast in a 5-week period from late summer to early fall. Hurricanes Harvey, Irma, and Maria were each on their own a major disaster requiring extensive federal collaboration with state response. FEMA deployed its already thinned resources to each of these disasters as best it could, but ultimately even optimal staffing levels (which FEMA lacked in 2017) would not have allowed complete federal responses in all the affected areas.

The Commission’s report concludes that lower levels of aid provided by FEMA to Puerto Rico in the immediate aftermath of Maria is evidence of discriminatory action in violation of Title VI and 44 CFR § 7.5. The report cites evidence to support this claim, such as the quicker first response to Harvey (Texas) than to Maria (Puerto Rico), as well as a lack of Spanish and Spanish Sign Language translators available to FEMA in Puerto Rico. These are representative examples of the evidence cited throughout the report—FEMA took too long to send resources to the island, sent too few resources, and failed to consider the particular difficulties of managing a disaster response on Puerto Rico. These criticisms are all legitimate, but they fail to prove the Commission’s legal claim.

One major issue with the report’s claim that FEMA’s response violated civil rights laws is that Title VI of the Civil Rights Act has been held not to apply to FEMA, and that 44 CFR § 7.5 by its own language applies only to recipients of federal funding, not the granting federal agencies. But even looking beyond the inapplicability of these laws, the evidence brought to support the Commission’s claims is probative only of the potential disparate impact of FEMA’s responses to Harvey and Maria. Title VI requires a showing of disparate treatment, which would require a showing that FEMA was motivated by a desire to limit the response to Maria because of the race, ethnicity, or national origin of the affected population. Such evidence simply does not exist in this report.

FEMA’s inadequate response to Maria can be explained more logically by several key factors. The first is perhaps the most obvious: Hurricane Maria hit after FEMA’s resources had already been stretched by Hurricanes Harvey and Irma. Second, Puerto Rico is an island, so relief supplies had to be brought in either by boat or by plane. This was incredibly difficult to do when hurricane and other latent storm conditions plagued the waters and airspace surrounding the island. When those supplies did arrive at Puerto Rican ports, teamsters themselves were survivors and were thus unavailable to take those supplies to where they were needed most. Third, Puerto Rico’s entire power system—long neglected and in bankruptcy—was knocked out when Maria made landfall. The whole island was thrown into darkness. This made FEMA’s job exponentially more difficult. FEMA and other federal agencies assume that a state or territory will ultimately assume most of the burden for its own response, including dealing with power issues. FEMA is meant to serve in a coordinating capacity. This was simply not possible in Puerto Rico, and new procedures had to be put in place on the fly in order to ensure that the island nonetheless received the aid it so desperately needed. Finally, a number of more minor factors combined to create major issues. One of the more interesting of these was the lack of formal property title in parts of Puerto Rico, which impaired the ability of property owners to make claims for government benefits.

To a hammer, everything looks like a nail. While discrimination may seem on the surface to explain frustrating disparities in a federal response, in this case, those disparities are much more readily explained by the unique circumstances FEMA faced in Puerto Rico.

The report can be found in its entirety at https://www.usccr.gov/reports/2022/civil-rights-and-protections-during-federal-response-hurricanes-harvey-and-maria. I recommend reading the dissenting statement of Commissioner Gail Heriot on page 311. Commissioner Heriot’s statement can also be accessed separately at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4223768.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.