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Unintentionally Coercive Federalism

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Patrick Mulhearn
November 15, 2019

Legitimacy is fundamental to governance; governmental authority is an expression of the will of the governed.

Such austere, academic expressions border on the arcane, but the concepts involved resonate across government from the lowly deck permit in your local Planning department to decisions made about disaster relief at the Federal level. In many ways the processes involved with both that deck permit and disaster relief are very similar: applications are submitted for review, then run through an analysis of technical requirements resulting in an up-or-down decision. Of course, though, the scope of consequences for these decisions are vastly different.

Pineapple Express

For anyone outside of the West Coast, the Pineapple Express is either an early aughts comedy or a strain of marijuana—or maybe for a select sample of the population, both—but it’s a legitimate atmospheric phenomenon that is perhaps better described by its formal name: atmospheric river. This particular atmospheric river is literally a high-altitude river of moisture traveling east from Hawaii that regularly bombards the West with huge amounts of rain, wreaking havoc on public and private infrastructure alike.

In the winter of 2016/17 a series of atmospheric rivers struck California flooding communities up and down the coastline. But in some more mountainous communities these floodwaters also undermined and washed out roads. Santa Cruz County, California, was by far the worst hit.

In the 16/17 storm season some 200 individual road sites were compromised with an estimated price tag of $140 million—the highest of any jurisdiction in the state.

And the Federal Government has a program designed to help in just such circumstances. The Individual Assistance Program provides support for communities faced by federally-declared disasters such as the 16/17 Pineapple Expresses, but the implementation guidelines for the programs have strict timelines for project design approval and in a small jurisdiction just the application process alone can overwhelm an agency’s staff—especially in a situation where they’re at the same time attempting to rebuild their community. In order to meet these deadlines staff are diverted from other projects and consultants are hired to help expedite application materials such as environmental and engineering documents.

But even if these application materials are submitted in a timely manner, the bureaucracy at the federal level must still then evaluate and process these materials—all before the application shot-clock expires.  The trick to the Individual Assistance Program is that federal reviews are considered part of the application shot-clock and should any part of the application get hung up in environmental or engineering evaluations the application can die while it’s being reviewed.

Service Delivery = Legitimacy

Think about that deck permit. Say you meet all the application requirements, get your forms in before the deadline and now just wait for that approval. It’s a pro forma, administrative process subject to a strictly technical review, so as long as all the boxes are ticked it’s approved. But somewhere in the Planning department staff are backed up and your application languishes so long that your application expires.

Not being able to perform basic functions is the epitome of failed government. And while a disaster relief application is composed of infinitely more complex technical specifications and subject to rigorous environmental reviews, it’s the normal function of the departments doing the reviewing and thus has a quotidian aspect. It’s not crazy for FEMA to review a disaster relief application, just as it’s no big deal for the Planning Department to review a deck permit. It’s what they do.

But agencies should acknowledge when their review becomes part of the problem; that the technical oversight is contributing to the failure of basic functions of government.

And while the Individual Assistance Program includes an opportunity to apply for extensions, this decision is discretionary and a jurisdiction can’t know whether they’ll have spent a year developing a project only to have it fail to be approved due to a programmatic deadline. 

It’s Not About Partisanship

Since 2011 there have been 84 extreme weather events in the United States—each causing over $1 billion in damage. During that period, United States counties issued more than 13,000 emergency declarations, and there are only 3,144 counties. In 2017 alone there were 16 such events. There’s flooding in the Midwest, wildfires in the West, Hurricanes in the Gulf and Mid-Atlantic and it’s only going to get worse.

In the past 10 years the Federal Government has spent $350 billion on storm damage repairs, and it’s anticipated that we’ll be spending $35 billion annually by 2050. These figures are only for the Federal Government, and don’t include the money spent by local governments on local matching funds for federal aid, nor do they account for the local money that will be spent when federal application deadlines expire with local projects still in the pipeline. 

This is the fiscal reality of climate change that all levels of government now face. In order to maintain legitimacy it’s critical that basic functions like disaster relief are subject to clear and flexible processes that enable maximum investment in rebuilding our communities. It is critical that deadlines encourage local engagement without penalizing jurisdictions for extended administrative reviews.

Author: Patrick Mulhearn, MPA, is a public policy analyst for the Santa Cruz County, California, Board of Supervisors. He focuses primarily on policies relating to telecommunications and transportation infrastructure and may be reached at [email protected].

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