Hurricane Helene left over 230 dead, some 350 missing, and hundreds of thousands without power. The estimated property damage has eclipsed $47 billion. The Federal Emergency Management Agency has been deployed to respond to the wreckage, and, according to an official assigned to North Carolina’s Buncombe County, FEMA has received over 27,000 requests for aid.
That official, MaryAnn Tierney, reportedly reassured locals that FEMA “will be with you every step of the way.” Many residents, however, feel that the agency has been missing in action. Those in Bat Cave, a small North Carolina town, claim that officials failed to follow up on requests for assistance because of a “Road Closed” sign. Some, like Curtis McCart, 58, are despondent, telling the New York Post: “At this point, I don’t care if FEMA comes by . . . I’m wondering if Big Brother is going to allow us to rebuild.”
While some Helene survivors question FEMA’s commitment to rebuilding their regions, the agency has been unequivocal in its support for “equity.” The agency hosted a webinar in 2023 entitled “Helping LGBTQIA+ Survivors Before Disasters,” focused on helping “disadvantaged” groups. One panelist said, “The shift we’re seeing right now is a shift in emergency services from utilitarian principles—where everything is designed for the greatest good for the greatest amount of people—to disaster equity.” This focus is not confined to discussion in a webinar: FEMA’s own website declares that “Goal 1” is to “instill equity as a foundation of emergency management.”
If FEMA’s commitment to “disaster equity” means that it is prioritizing aid deployment for racial or sexual minorities at the expense of majority-white communities like Bat Cave, it would be violating federal anti-discrimination law.
Lawsuits brought in the wake of Hurricane Katrina point to potential legal remedies for Helene’s survivors. After Katrina, FEMA was criticized for its slow response and inability to coordinate relief efforts with state and local authorities. Millions of dollars of hurricane aid didn’t reach those in need due to mismanagement. Many victims sued FEMA, alleging that it failed to provide previously agreed-upon benefits.
McWaters v. FEMA—the first post-Katrina judicial attack on the agency’s “systemic problems”—relied on the principle of equal protection. The federal district court in Louisiana’s ruling appealed to provisions in the Stafford Act, which govern officials’ response to natural disasters. Particularly, the court cited one section that requires federal assistance to be distributed “in an equitable and impartial manner, without discrimination on the grounds of race, color, religion, nationality, sex, age, disability, English proficiency, or economic status.” The judges held that this clause meant that eligible applicants were “automatically” entitled to aid, which, under the principles of property law, creates a legitimate interest in the receipt of that benefit.
What did that mean for the plaintiffs? The court granted them an injunction against FEMA, which preserved their rights to temporary shelter and reduced the burden of paperwork to which they were subjected. Today’s courts might find that FEMA’s delay in providing rescue provisions entitles North Carolina survivors to similar relief.
North Carolinians can look to the 2006 ruling as a model for their own potential legal action. The Stafford Act’s antidiscrimination provisions would presumably bar FEMA from distributing provisions based on the principles of “disaster equity.” No victims can pole-vault ahead of others based on their race or on other protected characteristics.
As courts have found, Helene’s survivors are entitled, by the Due Process Clause, to FEMA aid, which means that the agency will have a difficult time justifying any delays in aid distribution. As victims seek relief, they can be confident that the law is on their side when FEMA delays—or if it invokes “disaster equity” to justify discrimination.
Photo by Melissa Sue Gerrits/Getty Images