FEMA Braces for Slew of Trailer Suits
Thursday, July 31, 2008 at 2:23 pm
The Federal Emergency Management Agency last week asked for immunity from lawsuits over the high formaldehyde levels in the trailers it used to house Hurricane Katrina victims. FEMA says it did not build the trailers, merely bought them, so the manufacturers should be held solely responsible.
A U.S. attorney argued before a federal judge on July 23 that FEMA’s response to the natural disaster is legally protected since the agency was exercising governmental discretion. Only Congress, he said, has the authority to address the agency’s possible negligence. U.S. District Judge Kurt Engelhardt of the Eastern District of Louisiana is taking the request under advisement. Attorneys for the plaintiffs expect a ruling in the next two or three weeks.
Congressional hearings have revealed that FEMA knew about the formaldehyde problem in its trailers and failed to take action for almost two years. FEMA’s lawyers advised the agency not to test for toxicity in order to avoid liability — but that advice may have left FEMA vulnerable to even greater liability. Those familiar with this gray legal area say the government agency could be held liable for several reasons.
FEMA began receiving complaints from trailer occupants about formaldehyde fumes in early 2006. Shortly thereafter, in April 2006, independent testing found levels to be well above safe living standards. In June, FEMA’s lawyers warned the agency against doing its own tests, according to internal emails obtained by Congress. Agency employee Peggy Phillips wrote: "[Office of General Counsel] has advised that we do not do testing, which would imply FEMA’s ownership of this issue."
FEMA attorney Patrick Preston gave the agency this advice:
"Do not initiate any testing until we give the OK. While I agree that we should conduct testing, we should not do so until we are fully prepared to respond to the results. Once you get results and should they indicate some problem, the clock is running on our duty to respond to them."
The agency did not perform testing. It did, however, release a public statement saying, "we are confident that there is no ongoing risk."
Monroe Freedman, a law professor at Hofstra University who is a legal ethics expert, told The San Francisco Chronicle last year, "these lawyers should be disbarred for incompetence…They should also be held liable civilly for complicity in whatever harm was suffered by the residents of the trailers after their knowledge of the severe health risks."
David Super, a law professor at the Univ. of Maryland, said it’s possible that such legal advice could hurt FEMA’s case for immunity "if testing at an earlier stage would have been the prudent and reasonable thing to do."
"Just as people owe one another the duty of reasonable care to prevent harm from happening in first place," Super explained, "we also owe one another the duty to mitigate that harm as best within our power. I have a duty not to hit you with my car, but if I do, I have a further duty to help you get to the hospital or get medical care."
FEMA declined to comment on the toxic trailer lawsuits.
Super also pointed out that there is no general legal principle that the government is immune from lawsuits regarding its response to a disaster. "There’s a good reason there’s no such general principle," he said. "While we don’t know when and where disasters will hit, we do know that disasters hit. Government agencies, including FEMA, are expected to plan for those disasters."
In fact, one year before Hurricane Katrina, FEMA did a full-scale simulation of what a storm similar to Katrina would look like. Its results showed that about a half-million people would be left homeless. This means. says Super, that the agency had reason to believe that emergency trailers would be needed to respond to such a disaster.
FEMA says the contractors are to blame for building trailers using cheap materials with high formaldehyde contents. While that may be true, the contractors built the mobile homes to specifications set by FEMA.
There is a legal difference, says Super, between someone who carries out an illegal act and someone who supervises that person. But, he said, "FEMA was certainly capable of issuing… specifications for safe trailers, which, if the reports are true, they did not."
FEMA’s attorneys have argued in court papers that the government "is only liable in such situations if it supervised and directed day-to-day activities of its contractors, which did not occur in this case."
One lead lawyer for the plaintiffs, Tony Buzbee, says that’s just not true. FEMA employees were present every day at each of the eight main manufacturing facilities, and they inspected trailers as they came off the assembly line, according to deposition taken from the CEO of Gulf Stream Coach, the biggest trailer manufacturer.
Buzbee also says that FEMA’s claim that it acted out of governmental discretion in its response to Hurricane Katrina may be a weak one. "FEMA was acting pursuant to a mandate. And that mandate required it to provide long-term and temporary housing that was safe and sufficient for residential use," he said. "There was no discretion involved. They were required to provide safe housing."
New Orleans attorney Davida Finger agrees. She runs the Katrina Law Clinic at Loyola University and works daily with local residents suffering from health problems as a result of living in toxic FEMA trailers. "No government agency has discretion in whether to provide something dangerous to the public or not," she said. "Agency discretion does not allow it to put the public in harm’s way."
Trailer occupants have had their human rights violated, Finger says. "Housing is a fundamental human right, and disaster housing was and continues to be a mandate of the federal government," she said. "What we know is that those who were most vulnerable were placed in the greatest harm."
The plaintiffs’ attorneys are also going after the contractors, including Gulf Stream Coach, the manufacturer given the biggest FEMA contract — a $522 million contract to build 50,000 trailers.
Gulf Stream employees say the company knew about the unsafe formaldehyde levels. "In the first instance," Buzbee said, "it’s the manufacturers who are primarily responsible. However, FEMA’s response in the way it handled this situation was a true debacle." Especially, he added, because the agency made efforts to cover it up.
Gulf Stream Coach did not return several calls made by The Washington Independent.
Three years after Hurricane Katrina, many people are still living in the FEMA-issued trailers. The trailers were never intended for long-term housing — they were meant for short-term, emergency use only.
This has only exacerbated the effects of the building specifications set by FEMA, which fall below federal safety standards.
"The fact that people are still in those trailers," said Super of the Univ. of Maryland, "is a failure on FEMA’s part."
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