Emergency Communications: Effectiveness of the Post-Katrina Interagency Coordination Group Could Be Enhanced

During emergency situations, reliable communications are critical to ensure a rapid and sufficient response. PKEMRA was enacted in 2006 to improve the federal government's preparation for and response to disasters, including emergency communications. Since that time, natural and man-made disasters continue to test the nation's emergency communications capabilities. Given that states and localities are the first line of response following a disaster, states' emergency communications planning is very important.

GAO was asked to review the implementation of PKEMRA. This report examines (1) federal efforts to implement PKEMRA emergency communications provisions related to planning and federal coordination, and (2) how states' emergency communications planning has changed since PKEMRA. GAO reviewed relevant reports and documentation from DHS and other agencies; surveyed SWICs from 50 states, the District of Columbia, and 5 territories, receiving 52 responses; assessed the ECPC's collaborative efforts; and interviewed federal and state officials selected for their emergency communications experience. GAO plans to review the implementation of other PKEMRA emergency communications provisions in future work.

Implementation of the Post-Katrina Emergency Management Reform Act of 2006 (PKEMRA) provisions related to emergency communications planning and federal coordination has enhanced federal support for state and local efforts; however, federal coordination could be improved. PKEMRA created within the Department of Homeland Security (DHS) the Office of Emergency Communications, which has taken a number of steps aimed at ensuring that state and local agencies have the plans, resources, and training they need to support reliable emergency communications. PKEMRA also directed DHS to develop the National Emergency Communications Plan (NECP). The NECP includes goals for improving emergency communications and encourages states to align their plans with these emergency communications goals. PKEMRA further established the Emergency Communications Preparedness Center (ECPC), comprising 14 member agencies, to improve coordination and information sharing among federal emergency communications programs. GAO previously identified key features and issues to consider when implementing collaborative mechanisms, including interagency groups like the ECPC. GAO found that the ECPC's collaborative efforts were consistent with most of these features, such as those related to leadership and resources, but were not fully consistent with others. For example, one of the key features calls for interagency groups to clearly define goals and track progress, yet the ECPC has not done so. As a result, the ECPC's member agencies might not understand the ECPC's goals or have a chance to ensure that the goals align with their own agencies' purposes and goals. Furthermore, the ECPC puts forth recommendations that could improve emergency communications. But the recommendations are implemented at the discretion of the ECPC's member agencies and are not tracked. Without a mechanism to track the ECPC's recommendations, it is unclear the extent to which the recommendations are being implemented and the ECPC is missing an opportunity to monitor its progress.

Almost all of the Statewide Interoperability Coordinators (SWIC) responding to GAO's survey reported that to better plan for emergency communications during disasters, their states have taken the following steps since PKEMRA: (1) developed comprehensive strategic plans for emergency communications that align with the NECP; (2) established SWIC positions to support state emergency communications initiatives, such as developing high-level policy and coordinating training and exercises; and (3) implemented governance structures to manage the systems of people, organizations, and technologies that need to collaborate to effectively plan for emergencies. GAO did not independently verify state responses. In responding to GAO's survey, most SWICs reported not having a comprehensive emergency communications plans in place prior to PKEMRA's 2006 enactment. In particular, prior to the enactment of PKEMRA, only a few states had comprehensive emergency communications plans in place, but now all but one have such a plan. Most of the SWICs also reported that their statewide plans cover key elements, such as governance, standard operating procedures, and training and exercises, which are considered by DHS as the essential foundation for achieving the NECP goals.

GAO is making recommendations to DHS aimed at improving the ECPC's collaborative efforts, including defining its goals and tracking its recommendations. DHS concurred with the recommendations.

For first responders in emergency situations, reliable communications are  critical to ensuring a rapid and sufficient response. In the aftermath of  Hurricane Katrina in 2005, gaps were apparent in how federal, state, and  local entities responded to the catastrophic storm, including that  emergency communications were not operable, interoperable, and  continuous. In addition, many available communications assets were not  fully utilized because of insufficient planning and coordination. Congress  passed the Post-Katrina Emergency Management Reform Act of 2006  (PKEMRA) to improve the federal government’s preparation for and  response to natural and manmade disasters. Among the more than 300  PKEMRA reforms, 10 provisions specifically relate to improving  emergency communications during disasters. Three of the emergency  communications provisions focus on planning and federal coordination  issues that were evident following Hurricane Katrina. These provisions (1)  established the Office of Emergency Communications (OEC) within the  Department of Homeland Security (DHS); (2) directed DHS to develop the  National Emergency Communications Plan (NECP), a national strategy to  enhance emergency communications response; and (3) establish the  Emergency Communications Preparedness Center (ECPC), an  interagency group responsible for coordinating federal emergency  communications programs. In 2008, we reported on actions taken by  DHS and others to implement the emergency communications provisions  and found that not all of the provisions had been fully implemented at that  time. Since our prior report, all of PKEMRA’s emergency  communications provisions have been implemented, but natural  disasters, such as Hurricane Sandy in 2012; terrorist attacks, such as the  2013 Boston Marathon bombings; and active shooter incidents continue  to test the nation’s emergency communications capabilities. These  incidences can stretch across jurisdictional borders, further highlighting  the need for operable, interoperable, and continuous emergency  communications. Given that localities are the first line of response  following a disaster, emergency communications planning at the state  and local level is very important, and such planning facilitates  coordination and decision making across all levels of government. DHS’s  National Response Framework stresses that planning is an inherent  responsibility of every level of government.

After Hurricane Sandy severely damaged local infrastructure, you asked  us to evaluate how the implementation of PKEMRA’s many provisions  has affected disaster preparedness, response, and recovery in general. In  this report, we focus on three emergency communications provisions  related to planning and federal coordination. Specifically, we examined  (1) federal efforts to implement PKEMRA’s emergency communications  provisions related to planning and federal coordination, and (2) how  states’ emergency communications planning has changed since  PKEMRA and what challenges remain for the states. We plan to review  PKEMRA’s other emergency communications provisions related to  disaster response and recovery in future work.

To address these objectives, we reviewed relevant reports, plans, and  other documentation from DHS and other federal agencies with  responsibilities related to emergency communications, such as the NECP  and progress reports on its implementation, biennial reports to Congress  on emergency communications, and Federal Communications  Commission (FCC) reports on 911 and Enhanced 911 (E911) services.  We interviewed officials from DHS, FCC, and the Department of  Commerce (Commerce) to determine their efforts to implement the  PKEMRA emergency communications provisions. We reviewed  documentation on the establishment of the ECPC, such as its charter and  plans to understand its mission and purpose, as well as the Annual  Strategic Assessments prepared for Congress to understand the steps  and progress the ECPC has taken to improve federal coordination. We  also interviewed 5 of 14 ECPC member agencies (DHS, FCC,  Commerce, the Department of Transportation, and the General Services  Administration) to understand their roles on the ECPC and how the ECPC  has supported the coordination of federal emergency communications  efforts. We selected agencies to interview with a range of emergency  communications experience, and the views we obtained do not  necessarily represent the views of all ECPC member agencies. We  assessed the ECPC’s collaborative efforts against six of seven key  features and issues to consider when implementing collaborative  mechanisms that we identified in a September 2012 report. Additionally,  to understand how states’ emergency communications planning has  changed since PKEMRA and what challenges remain for the states, we  surveyed the Statewide Interoperability Coordinators (SWIC) in 50 states,  the District of Columbia, and 5 territories. We surveyed SWICs from  February 2016 to April 2016 and received 52 responses for a 93 percent  response rate. More details about our scope and methodology can be  found in appendix I and a copy of our survey results in appendix II.

We conducted this performance audit from July 2015 to July 2016 in  accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.

The Homeland Security Act of 2002 established DHS and required the  agency, among other things, to build a comprehensive national incident  management system comprising all levels of government and to  consolidate existing federal government emergency response plans into a  single, coordinated national response plan. DHS developed the National  Response Framework that identified core capabilities necessary to  ensure national preparedness, such as operational planning at the federal  and state level and emergency communications capabilities that enable  emergency responders to effectively communicate with each other.  States and localities provide the first response to any disaster and thus  must plan and coordinate, across state lines, and with federal entities as  well. States have developed plans and made efforts to coordinate in  support of emergency communications. For example, state plans, called  Statewide Communication Interoperability Plans, are intended to define  the current and future direction for interoperable and emergency  communications within the state.

In addition to DHS, other federal agencies play a role in supporting  emergency communications during disasters. Specifically, FCC manages  the use of spectrum by non-federal entities, including commercial  enterprises and state and local governments, and administers policies  related to 911 and E911 services. The Department of Commerce’s  National Telecommunications and Information Administration (NTIA) is  responsible for managing spectrum used by the federal government and  can temporarily assign spectrum during an emergency to aid the  response. Along with FCC, NTIA deploys personnel to support disasters  in response to a mission assignment from DHS. Furthermore, the First  Responder Network Authority (FirstNet), an independent authority within  NTIA, is in the process of planning for the deployment of a high-speed,  interoperable nationwide wireless broadband network for use by federal,  state, tribal, and local public safety personnel.

Congress passed PKEMRA in 2006 to address issues that arose during  Hurricane Katrina, including emergency communications issues.  PKEMRA contains 10 emergency communications provisions that,  according to our 2008 report and updates we obtained from DHS, have all  been implemented, as shown in table 1. In this report, we focus on the  first three emergency communications provisions listed in the table,  requirements that are related to planning and federal coordination.

While all of these PKEMRA provisions have been addressed, DHS  continues to meet the requirements of some provisions, for example:

Grant program coordination: DHS, in conjunction with other agencies,  coordinates grant guidance across the government annually through  SAFECOM’s Guidance on Emergency Communications Grants. The  guidance provides grantees with directions on applying for funds to  improve emergency communications and the current standards for  grant award recipients. DHS developed the guidance to align with the  first NECP and it now reflects the most recent NECP.

Interoperability research and development: Since PKEMRA, DHS has  conducted research and development to support emergency  communications interoperability. Among other things, DHS is  responsible for establishing research, development, testing, and  evaluation programs for improving interoperable emergency  communications.

Assessments and reports: DHS intends to issues the next biennial  progress report in November 2016.

Implementation of PKEMRA Provisions Has Enhanced Federal Support for State and Local Emergency Communications Efforts, but Federal Coordination Could Be Improved

Enhanced Federal Support for State and Local Emergency Communications Efforts

Office of Emergency Communications (OEC)

OEC has enhanced support of state and local planning and other  emergency communications activities. OEC has taken a number of steps  aimed at ensuring that federal, state, local, tribal, and territorial agencies  have the plans, resources, and training they need to support  interoperable emergency communications. After being established in  2007, OEC focused on enhancing the interoperability and continuity of  land mobile radio systems. However, OEC’s scope has expanded since  then to include other technologies used to communicate and share  information during emergencies, including devices that have advanced  telecommunications capabilities, such as broadband access. OEC has  developed policy and guidance supporting emergency communications  across all levels of government and various types of technologies. Table  2 describes key guidance OEC has provided to state and local entities.

In addition to developing policy and guidance, OEC has provided  technical assistance in the form of training, tools, and online and on-site  assistance for federal, state, local, and tribal emergency responders.  According to OEC, the technical assistance is designed to support  interoperable emergency communications by helping states develop and  implement their statewide plans to enhance emergency communications,  standard operating procedures, and communications unit training, among  other things. All states responding to our survey reported receiving  technical assistance provided by OEC, and almost all of those states  were satisfied with the support they received from OEC. For example in  response to our survey, one state commented that OEC had provided  invaluable training for the state’s first responders and assistance to the  state’s governing authority.

National Emergency Communications Plan (NECP)

According to DHS, the PKEMRA provision requiring the NECP has  improved state and local emergency communications activities, including  governance and planning. The NECP, first issued by DHS in 2008,  served as the first national strategy aimed at improving emergency  communications interoperability and provided a road map to improve  emergency communications capabilities. For example, the 2008 NECP  encouraged states to have standard operating procedures for specified  events. To assist the states in this effort, OEC developed a toolkit that  provides general guidance and tools for state communications planners in  developing a plan for special events and made a variety of templates  available online for states to use in developing standard operating  procedures.

In 2014, DHS released its second NECP, which contains the following  five goals:

Governance and leadership: Enhance decision making, coordination,  and planning for emergency communications through strong  governance structures and leadership.

Planning and procedures: Update plans and procedures to improve  emergency responder communications and readiness in a dynamic- operating environment.

Training and exercises: Improve responders’ ability to coordinate and  communicate through training and exercise programs that use all  available technologies and target gaps in emergency  communications.

Operational coordination: Ensure operational effectiveness through  the coordination of communications capabilities, resources, and  personnel from across the whole community.

Research and development: Coordinate research, development,  testing, and evaluation activities to develop innovative emergency  communications capabilities that support the needs of emergency  responders.

DHS has taken various actions to support states’ efforts to address these  goals. For example, with respect to the first goal, DHS issued The  Governance Guide for State, Local, Tribal, and Territorial Emergency  Communications Officials. This guide identified challenges related to  emergency communications governance, as well as best practices and  recommendations to overcome these challenges. In addition, OEC  completed the 911 Governance and Planning Case Study, which  examined the governance, planning, and funding challenges that states  are facing regarding 911 and made a number of recommendations for  OEC to improve coordination. DHS has taken steps towards addressing  the other NECP goals. For example, related to the planning and  procedures goal, DHS has coordinated with the Department of  Transportation to identify risks and mitigation strategies to enhance the  continuity and operability of emergency communications. Among other  things, DHS has also partnered with FirstNet to conduct an assessment  of the potential cybersecurity challenges facing the public safety  broadband network. According to DHS, it will provide information on  additional progress on meeting the NECP goals in its biennial report to  Congress scheduled to be completed in November 2016.

Although the ECPC Follows Most Key Features of Collaboration, It Could Enhance Its Effectiveness

The ECPC, the interagency collaborative group established by PKEMRA,  provides a venue for coordinating federal emergency communications  efforts. The ECPC works to improve coordination and information sharing  among federal emergency communications programs. It does this by  serving as the focal point for emergency communications issues across  the federal agencies, supporting the coordination of federal programs,  such as grant programs, and serving as a clearing house for emergency  communications information, among other responsibilities. There are 14  member agencies of the ECPC that have staff on an Executive  Committee responsible for setting the ECPC’s priorities. In addition, the  ECPC has a Steering Committee and focus groups that develop plans to  address the priorities. Currently, there are three focus groups examining  issues related to grants, research and development, and 911 issues.  The focus groups report on their issues at Executive Committee and  Steering Committee meetings and in the Annual Strategic Assessment.  DHS serves as the administrative leader of the ECPC, organizes the  ECPC quarterly and other meetings, and drafts the Annual Strategic  Assessment and other documents.

In a 2012 report, we examined interagency collaborative mechanisms,  such as interagency groups, and identified certain key features and  issues to consider when implementing these mechanisms. We reported  that following leading collaboration practices can enhance and sustain  collaboration among federal agencies. For this report, we compared the  ECPC’s collaboration efforts with six of these key features and issues to  consider, as shown in table 3.

We found the ECPC’s efforts were consistent with the key features  related to leadership, participants, resources, and written guidance and  agreements. However, the ECPC’s efforts were not completely consistent  with the key features related to (1) outcomes and accountability, and (2)  clarity of roles and responsibilities, as explained below.

The ECPC has not documented its strategic goals and outcomes. We  previously reported that establishing shared outcomes and goals that  resonate with, and are agreed upon by all participants, is essential to  achieving outcomes in interagency groups, but can also be challenging.  Participants each bring different views, organizational cultures, missions,  and ways of operating. Participants may even disagree on the nature of  the problem or issue being addressed. Furthermore, agency officials  involved in several of the interagency groups we previously reviewed  cautioned that if agencies do not have a vested interest in the outcomes,  and if outcomes are not aligned with agency objectives, participant  agencies would not invest their limited time and resources. However, by  establishing outcomes and strategic goals based on the group’s shared  interests, a collaborative group can shape its vision and define its own  purpose, and when articulated and understood by the group, this shared  purpose provides a reason to participate. Although DHS identified four  long-term goals for the ECPC in response to our questions, these goals  do not appear in the ECPC charter, program plan, or Annual Strategic  Assessment. In May 2016, DHS officials told us the ECPC’s Executive  Committee agreed to develop a strategic plan to highlight the ECPC’s  goals and provide additional guidance for the focus groups. However, the  DHS officials could not specify a time frame for completion. Without  clearly defined strategic goals, the member agencies might not  understand the ECPC’s goals or have a chance to ensure that the goals  align with their own agencies’ purposes and goals. Furthermore, it  remains unclear whether all member agencies have agreed on the  ECPC’s goals and outcomes. In fact, ECPC member agencies we spoke  with were able to provide a general idea about the ECPC’s purpose but  could not articulate its specific goals.

Also with respect to outcomes and accountability, the ECPC does not  track or monitor its recommendations. The ECPC uses its Annual  Strategic Assessment to: (1) provide information on federal coordination  efforts, (2) define opportunities for improving federal emergency  communications, and (3) report on progress implementing some of the  focus groups’ recommendations. For example, the ECPC grants focus  group made nine recommendations for federal grant program managers,  including that the managers should use the ECPC Financial Assistance  Reference Guide when planning and developing grant documents, and  should invest in standards-based equipment. According to DHS, the  grants focus group conducts annual surveys of member agencies to  assess whether the agencies had implemented any of these  recommendations. However, recommendations made by the other ECPC  focus groups are not tracked, and therefore it is unclear the extent to  which the recommendations have been implemented by ECPC’s member  agencies. For example, the research and development focus group  identified five recommendations in 2015 that were aimed at improving  collaboration and information sharing around research and development  for emergency communications. Specifically, one recommendation was  for agencies to share technology profiles to prevent duplicative research.  However, it is voluntary for member agencies to implement the focus  group’s recommendations, and it is unknown whether agencies are  sharing their technology profiles or if duplicative research is being  conducted. According to DHS officials, the ECPC does not have a  mechanism to determine whether the focus groups’ recommendations are  implemented because it is up to the member agencies to decide if they  will implement recommendations and if so, to track them on an individual  basis. We have previously reported about the importance of federal  agencies engaged in collaborative efforts to publicly report performance  information as a tool for accountability. By having a mechanism to track  the focus groups’ recommendations, the ECPC would have the means to  monitor progress in achieving them.

The ECPC has not clearly defined the roles and responsibilities of its  member agencies. We previously reported that clarifying the roles of all  member agencies will help establish an understanding of who will do what  in support of the collaborative group. In addition, member agencies’  commitment to their defined roles helps the group overcome barriers to  working in the collaborative group and can facilitate decision making  within the group. The roles can be described in laws, policies,  memorandums of understanding, or other documentation. As described in  the ECPC charter, DHS is the administrator of the ECPC; however, it is  unclear whether all member agencies have defined and agreed upon their  respective roles and responsibilities. For example, the Department of  Labor is a member of the ECPC, but according to DHS, it might not be  clear to all members why the Department of Labor is a participating  member. Similarly, officials from the General Services Administration told  us they do not know the roles of the other ECPC members and could only  speak to us about their own agency’s role. DHS officials told us it would  be beneficial to have member agencies’ roles and responsibilities clearly  defined but expressed concern that some members, who participate  voluntarily, might not want defined responsibilities if such responsibilities  would require additional staff time and resources. Nevertheless, lacking  defined roles and responsibilities may result in member agencies’ not  knowing their roles and responsibilities or those of other members, which  may create additional barriers to effectively working together.

State Emergency Communications Planning Has Improved Since PKEMRA, but States Face Funding and Other Challenges

States’ Planning and Governance Structures have Improved since PKEMRA

States, the District of Columbia, and territories (hereafter, states)  responding to our survey reported that to better prepare for emergency  communications during disasters, they have: (1) developed emergency  communications plans, (2) established the Statewide Interoperability  Coordinator (SWIC) positions, and (3) implemented governance  structures to oversee emergency communications planning.

States have made progress since PKEMRA in establishing emergency  communications plans. Based on survey responses, prior to the  enactment of PKEMRA in 2006, only a few states had emergency  communications plans in place. In 2007, OEC began requiring states to  have a Statewide Communications Interoperability Plan (SCIP) to be  eligible for DHS’s Interoperable Emergency Communications Grant  Program. These state emergency communications plans are intended to  be comprehensive strategic plans that outline the current and future  emergency communications environment in a state. The NECP  encourages states to align their plans with the emergency  communications goals in the NECP to establish a link between national  communications priorities and state emergency communications  planning. Of the states responding to our survey, 51 reported having a  SCIP, and 36 state plans were implemented after PKEMRA’s  enactment. In addition to the SCIP, 16 states reported having other  planning documents that support operational plans for emergency  communications in addition to the high-level strategic plan the SCIP  represents. For example, some states reported using tactical documents  such as the Tactical Interoperability Communications Plan as their  primary emergency communications planning document.

The 2014 NECP encouraged states to update their plans and procedures  to enhance emergency communications during disasters, and 46 states  responding to our survey reported that they had updated their plans.  States reported updating their plans for various reasons, including  reflecting routine review processes, technological advancement, and  changes in state governance, among others. According to DHS, as of the  end of fiscal year 2015, OEC worked with 53 states and territories to  update their SCIPs to align with the 2014 NECP. In response to our  survey, 50 states reported being satisfied with the level of support for  emergency communications planning they received from OEC.

Further, as shown in table 4, most of the states responding to our survey  reported that they now have plans that contain the key elements of the  SAFECOM Interoperability Continuum. The NECP considers the  SAFECOM Interoperability Continuum as the essential foundation for  achieving the NECP goals.

According to the NECP, first responders’ proficiency with communications  equipment and their ability to execute policies, plans, and procedures can  improve with training and exercises. In response to our survey, 40 states  reported conducting training and exercises based on their emergency  communications plans. Furthermore, the NECP notes that training and  exercises helps emergency responders be properly prepared to respond  to disasters and 43 states reported that they are likely to use their  emergency communications plans when responding to future disasters.

Statewide Interoperability Coordinator (SWIC) Position

Since PKEMRA, states have made considerable progress in establishing  a key coordinator position. The SWIC provides a single point of contact  for statewide emergency communications activities. The NECP identifies  the SWIC as a key stakeholder in emergency communications. In 2008,  DHS noted that the lack of SWICs in each state was a primary obstacle to  improving emergency communications and recommended that every  state have a SWIC within 12 months. All but two states responding to our  survey reported that they now have a SWIC. DHS officials stressed the  importance of the SWIC position and told us that SWICs can contribute to  emergency communications initiatives by supporting the development of  governance structures, standard operating procedures, and high-level  policy. In addition, SWICs can coordinate grants and other types of  funding and training and exercises, and support implementation of the  SCIPs.

Although DHS has stressed the importance of the SWIC position,  according to our survey, most SWICs now have responsibilities outside  those of the SWIC role. In December 2009, according to DHS, 44 states  had a full time SWIC, but most survey respondents reported that their  SWICs now have other non-SWIC responsibilities. In particular, 37 states  responding to our survey have SWICs with additional non-SWIC related  responsibilities. For example, 21 SWICs are also the FirstNet Single Point  of Contact. States funded the SWIC position in part by the Interoperable  Emergency Communications Grant Program. According to DHS, funds  were not appropriated for this grant program after 2010. Subsequently,  funding dedicated to improving interoperability was used for other DHS  grant programs that supported improving emergency preparedness,  which included interoperable emergency communications. According to  our survey results, 26 SWIC positions are funded by federal grants, state  grants, or a combination of both federal and state grants. In April 2016,  the House of Representatives acknowledged the importance of the SWIC  position by passing the Promoting Resilience and Efficiency in Preparing  for Attacks and Responding to Emergencies Act, which includes a  provision that would require states to have a SWIC position or delegate  the responsibilities to other individuals.

Since PKEMRA, the NECP identified the need for formal governance  structures to manage the systems of people, organizations, and  technologies that need to collaborate to effectively plan for emergency  communications during disasters, and most states responding to our  survey reported that they have governance structures in place. According  to DHS, governance structures should include key emergency  communications stakeholders such as emergency communications  leaders, multiple agencies, jurisdictions, disciplines, subject matter  experts, and private sector entities, among others to enhance information  sharing and ensure emergency communications needs are represented.  Almost all of states (49) responding to our survey reported having  governance structures in place that include key stakeholders. For  example, 48 states reported that their governance bodies include  emergency responders from local agencies while 33 states reported that  non-government stakeholders, such as the Red Cross, are included. In  response to our survey, 24 states reported that their governance bodies  meet 3 to 7 times a year, and the governance bodies for 16 other states  meet 8 to 12 times a year while the remaining states with governance  structures meet less than 3 times a year.

In our survey, we asked states about the challenges that affect their  ability to ensure operable and continuous emergency communications  during disasters and states identified a lack of funding as the primary  challenge. In particular, 48 states responding to our survey indicated that  a lack of funding sometimes or always affected their state’s ability to  ensure operable and continuous emergency communications during  disasters. In written comments, 12 states specifically identified the need  for dedicated funding for emergency communications including funds to  support the role of the SWIC. For example, one state reported that when  it no longer received federal funding for emergency communications, the  state lost its full time SWIC position, support personnel, and governance  group. In addition, 45 states responding to our survey mentioned that the  lack of staffing sometimes or always presented a challenge for their  states. In the written responses, one state indicated that the lack of  staffing was difficult to address because of the funding issue, while  another indicated the state was under a hiring freeze. In other written  responses to our survey, states identified additional challenges. For  example, six states mentioned issues with technology, such as  challenges in learning to use different radio systems and understanding  new and emerging technologies.

We also asked the states if they have experienced interoperability  difficulties when communicating or attempting to communicate with  federal partners during disasters. In response, 23 states reported that  they have experienced difficulties and noted in written comments that the  issues included a lack of understanding by federal responders about the  local radio systems, federal radios not configured to the interoperable  channels or talk groups, and federal responders not using the statewide  system. Furthermore, two states noted a lack of planning between  federal and state entities prior to emergencies that led to federal  responders trying to figure out the systems during the emergency.

Some states responding to our survey reported that they have taken  action to address challenges related to funding, technology, and  interoperability concerns with federal partners. First, related to funding,  some states reported pursuing state level funding and grants to continue  emergency communications governance and planning, including funding  the SWIC position and building statewide emergency communications  systems. Second, some states reported addressing technology  challenges through training and upgrading old communication systems.  For example, one state reported that his state provides training to  emergency responders on radio operations and how to effectively use talk  groups. Another state reported his state is upgrading its 26-year old land  mobile radio system so that emergency responders can more effectively  communicate within the state and during emergencies. Lastly, some  states reported that they are trying to address interoperability issues  through training and the purchase of interoperable equipment. For  example, the training can improve coordination with federal and other  users that can result in improved interoperability during emergencies. In  addition, by purchasing interoperable equipment, emergency personnel  could have fewer issues connecting with emergency responders at all  levels of government. One state indicated that his state provided  information on interoperable equipment to local entities to promote the  purchase of such equipment. According to DHS officials, they continue to  provide training programs to the states to help improve interoperability.

PKEMRA established the ECPC to improve coordination and information  sharing among federal emergency communications programs. As a  collaborative entity, we found that while the ECPC’s efforts were  consistent with most of the key features for effective collaboration, its  efforts were not completely consistent with key features related to  outcomes and accountability and clarity of roles and responsibilities.  Regarding outcomes and accountability, the ECPC has not documented  its strategic goals or established a mechanism to track the outcomes of  the focus group’s recommendations. DHS officials told us the ECPC has  agreed to develop a strategic plan that would contain goals for the ECPC,  but there is no firm timetable for such a plan to be completed. Lacking  clearly defined strategic goals, the ECPC’s member agencies might not  understand the ECPC’s goals or have a chance to ensure that the goals  align with their own agencies’ purposes and goals. Furthermore, the  ECPC’s focus groups have spent time and resources to make  recommendations for improving emergency communications, but we  found the focus groups’ recommendations, such as those related to  federal grant programs and research and development efforts, are  implemented at the discretion of the member agencies. Without a  mechanism to track the recommendations, it is unclear the extent to  which the recommendations are being implemented by the member  agencies, and the ECPC is missing an opportunity to monitor its efforts.  Regarding clarity of roles and responsibilities, the ECPC has not defined  the member agencies’ roles and responsibilities, and some member  agencies do not know the roles and responsibilities of other members, a  situation that may create barriers to working together effectively. Clearly  defining the members’ respective roles and responsibilities would help to  provide an understanding of who will do what to support the ECPC’s  efforts and facilitate decision making.

To improve the effectiveness, transparency, and accountability of the  ECPC’s efforts, we recommend that the Secretary of Homeland Security,  as the administrative leader of the ECPC, take the following actions:  clearly document the ECPC’s strategic goals; establish a mechanism to track progress by the ECPC’s member  agencies in implementing the ECPC’s recommendations; and  clearly define the roles and responsibilities of the ECPC’s member  agencies.

We provided a draft of this report to DHS, Commerce, and FCC for their  review and comment. In response, DHS provided written comments,  which are reprinted in appendix III. In written comments, DHS concurred  with our recommendations and provided an attachment describing the  actions it would take to implement the recommendations. DHS noted that  enhancing the communications capabilities for emergency responders is  one of its top priorities and that DHS will use the recommendations  provided in our report to enhance a DHS initiative aimed at remediating  many of the foremost emergency communications challenges facing our  nation. Separately, DHS, Commerce, and FCC provided technical  comments that we incorporated as appropriate.

As agreed with your offices, unless you publicly announce the contents of  this report earlier, we plan no further distribution until 30 days from the  report date. At that time, we will send copies to the Secretaries of  Homeland Security and Commerce, the Chairman of FCC, and  appropriate congressional committees. In addition, the report will be  available at no charge on the GAO website at http://www.gao.gov.

If you or members of your staff have any questions about this report,  please contact me at (202) 512-2834 or goldsteinm@gao.gov. Contact  points for our Offices of Congressional Relations and Public Affairs may  be found on the last page of this report. Major contributors to this report  are listed in appendix IV.

This report focuses on three Post-Katrina Emergency Management  Reform Act of 2006 (PKEMRA) emergency communications provisions  related to planning and federal coordination: the Office of Emergency  Communications (OEC), the National Emergency Communications Plan  (NECP), and the Emergency Communications Preparedness Center  (ECPC). Specifically, we examined (1) federal efforts to implement these  PKEMRA emergency communications provisions and (2) how states’  emergency communications planning has changed since PKEMRA and  what challenges remain for the states.

To determine federal efforts to implement the three PKEMRA emergency  communications provisions, we reviewed our 2008 report and other  relevant reports and documentation from the Department of Homeland  Security (DHS), such as DHS’s biennial reports to Congress on  emergency communications, and reports from other agencies, such as  the Federal Communications Commission’s (FCC) 911 and Enhanced  911 services report. We also reviewed the NECP from 2008 and the  subsequent reports on the progress meeting its goals, as well as the 2014  NECP. We interviewed officials from DHS, FCC, and the Department of  Commerce (Commerce) to determine their roles and the progress  implementing the provisions. We compiled information from the reports  and interviews to assess how the provisions were implemented and if  they were fully implemented. To understand the ECPC’s collaborative  practices, we reviewed the ECPC charter, program plan, and Annual  Strategic Assessments prepared for Congress, and interviewed ECPC  member agencies. Specifically, we interviewed 5 of 14 ECPC member  agencies (DHS, FCC, Commerce, the Department of Transportation, and  the General Services Administration) to determine their roles on the  ECPC, their understanding of the ECPC goals, and the member  agencies’ responsibilities. We selected agencies to interview with a range  of emergency communications experience, and the views we obtained do  not necessarily represent the views of all ECPC member agencies. We  assessed the ECPC’s collaborative efforts against six of seven key  considerations for implementing collaborative mechanisms that we  identified in a September 2012 report.

To understand how state emergency communications planning has  changed since PKEMRA and the challenges states still face, we surveyed  Statewide Interoperability Coordinators (SWIC) in 50 states, the District of  Columbia, and 5 territories. The list of SWICs was obtained from DHS  and confirmed via email. We conducted a web-based survey that  addressed issues pertaining to state planning, governance, and  challenges, specifically asking about the Statewide Communications  Interoperability Plan (SCIP) and other emergency communications plans,  and the role of the SWIC. To ensure the survey questions were clear and  logical, we pretested the survey with three states: North Dakota, Texas,  and Wyoming. These states were selected based on the types of  disasters facing the states, the number of recent disasters, and  geographic diversity. We administered our survey from February 2016 to  April 2016 and received 52 responses for a 93 percent response rate.  American Samoa, Massachusetts, the Northern Mariana Islands, and  Puerto Rico did not respond to our survey. In addition, we interviewed  selected SWICs from Kentucky and Wyoming to understand how the  SCIPs and other emergency communications plans are used in preparing  for emergencies. We selected these SWICs to interview based on  geographic region, an occurrence of a recent disaster in the state, and  because the Wyoming SWIC was the chair of the National Council of  Statewide Interoperability Coordinators. We conducted semi-structured  interviews with each SWIC to understand if they had a SCIP, how they  used the SCIP, the governance structures the state uses to manage  emergency communications, and the challenges their states encounter  with emergency communications during disasters.

Appendix II: Survey of Statewide Interoperability Coordinators

The questions we asked in our survey of Statewide Interoperability  Coordinators and the aggregate results of responses to the closed-ended  questions are shown below. We do not provide results for the open-ended  questions. We received 52 completed survey responses. However, all  respondents did not have the opportunity to answer each question  because of skip patterns, and some respondents decided not to respond  to particular questions. For a more detailed discussion of our survey  methodology see appendix I.  1. Does your state have a Statewide Communications Interoperability  Plan (SCIP)?   1a. If no, why doesn’t your state have a SCIP?  (Written responses not included)  1b. Does your state have a primary planning document for ensuring  operable and interoperable emergency communications during  disasters in your state?

1c. Is your SCIP your primary plan to ensure operable and  interoperable emergency communications during disasters in your  state?  1d. If no, what, is your primary planning document for ensuring,  operable, and interoperable emergency communications during  disasters in your state?  (Written responses not included)  2. What year was the emergency communications plan implemented?

3. Has your state used the emergency communications plan in response  to disasters?

3a. If the emergency communications plan has never been used in  response to disasters, why not?  (Written responses not included)  4. Has your state used the emergency communications plan during  training exercises?

4a. If the emergency communications plan has never been used  during training exercises, why not?  (Written responses not included)  5. Are you likely to use the emergency communications plan in response  to disasters in the future?   6. Has the emergency communications plan been updated since it was  initially implemented?   6a. When was the emergency communications plan last updated?   6b. Why was the emergency response plan updated?  (Written responses not included)  6c. Do you think your plan needs to be updated?

6d. If yes, why hasn’t the emergency response plan been updated?  (Written responses not included)

Elements of the Emergency Communications Plan  7. Does your emergency communications plan address the following  elements?

Planning (standard operating  procedures, protocols)

Technology (data and voice  elements, common applications,   base sharing, custom applications,  swapping radios, gateways)

Usage (how often interoperability  communications are used in planned  events, localized emergency  incidents, regional incidents, and  daily use)

8. Does your emergency communications plan address the following  types of events?

Significant events (i.e., terrorist attacks,  major disaster, and other emergencies  that pose the greatest risk to the state)

Routine events (i.e., localized  emergency incidents, regional  emergency incidents, special events,  large public gatherings, state and  national exercise)

If “Other standardized elements” is checked, what other elements are  contained in your operating protocols and procedures?  (Written responses not included)

Planning and Standard Operating Procedures  9. Does your emergency communications plan contain the following  standardized elements in your operating protocols and procedures?

If “Other standardized elements” is checked, what other elements are  contained in your operating protocols and procedures?  (Written responses not included)  10. Does your state have a Statewide Interoperability Coordinator  (SWIC)?

10a. What best describes the SWIC in your state?

10b. If “Other” is checked, what describes the SWIC in your state?  (Written responses not included)  10c. How, if at all, have current SWIC responsibilities changed in the  past 5 years?

10d. If “Other change” is checked, what other SWIC responsibilities  have changed in the past 5 years?  (Written responses not included)  10e. Does the SWIC also serve in the role of the FirstNet state Point  of Contact (SPOC)?

10f. How is the SWIC position in your state funded?   10g. To what extent have the following factors contributed to your  state NOT having a SWIC?

If “Other factor” is checked, what other factors contributed to your  state not having a SWIC?  (Written responses not included)  11. Does your state have a governance body supporting emergency  communications planning?   11a. Generally, how often does the governance body in your state  meet to discuss planning efforts to ensure emergency  communications during disasters?

11b. Are public safety representatives from the following categories  represented in your governance body?

International (states/territories near  national boarders)

Non-Government (i.e., American   Red Cross, public safety association  groups, etc.)

11c. If no, what entities and individuals are responsible for overseeing  emergency communications in the state?  (Written responses not included)  12. Generally, how involved are the public safety representatives from the  following categories in the planning and coordinating efforts to ensure  continuous operable emergency communications in your state?

Non-Government (i.e., American Red  Cross, public safety association groups,  etc.)

13. In developing and/or maintaining your state’s emergency  communications plan, have you received technical assistance services  offered by the Office of Emergency Communications (OEC) within the  Department of Homeland Security?

14. Overall, how satisfied or dissatisfied are you with the level of support  for emergency communications planning from the OEC?   15. Have you experienced interoperability difficulties when  communicating or attempting to communicate with federal partners during  disasters?   15a. If yes, what interoperability difficulties did you experience when  communicating or attempting to communicate with federal partners?  (Written responses not included)  16. Since 2008, has your state received federal grant funding in support  of emergency communications?

16a. What areas did the grant funding support?

Planning (standard operating procedures,  protocols)

Technology (data and voice elements,  common applications, base sharing,  custom applications, swapping radios,  gateways)

Usage (how often interoperability  communications are used in planned  events, localized emergency incidents,  regional incidents, and daily use)

17. How, if at all, has the federal grant funding your state received in  support of emergency communications changed in the past 5 years?

18. What additional federal efforts, if any, are needed to help ensure  operable, interoperable, and continuous emergency communications in  your state during disasters?  (Written responses not included)  19. Generally, how often, if at all, do the following challenges affect your  state’s ability to ensure operable and continuous emergency  communications during disasters in your state?

If “Other challenge” is checked, what other challenges affect your state’s  ability to ensure operable and continuous emergency communications  during disasters?  (Written responses not included)  20. What actions, if any, has your state taken to address the items you  identified as challenges in question 19?  (Written responses not included)  21. What actions, if any, can the federal government take to address the  items you identified as challenges in question 19?  (Written responses not included)  22. If you would like to expand upon any of your responses to the  questions above, or have any other comments about your state’s  planning efforts to ensure operable and interoperable emergency  communications, please enter them below.  (Written responses not included)

Appendix III: Comments from Department of Homeland Security

Appendix IV: GAO Contact and Staff Acknowledgments

In addition to the individual named above, Sally Moino (Assistant  Director), Enyinnaya David Aja, Cynae Derose, Eric Hudson, Cheryl  Peterson, Kelly Rubin, Erik Shive, Andrew Stavisky, and Nancy Zearfoss  made key contributions to this report.

Question: What has fueled improved emergency communication and coordination?

Answer: Implementation of the Post-Katrina Emergency Management Reform Act of 2006 (PKEMRA) provisions related to emergency communications planning and federal coordination has enhanced federal support for state and local efforts; however, federal coordination could be improved.

Question: What improvements have been made?

Answer: PKEMRA created within the Department of Homeland Security (DHS) the Office of Emergency Communications, which has taken a number of steps aimed at ensuring that state and local agencies have the plans, resources, and training they need to support reliable emergency communications. PKEMRA also directed DHS to develop the National Emergency Communications Plan (NECP).

Question: What does NECP and PKEMRA do?

Answer: The NECP includes goals for improving emergency communications and encourages states to align their plans with these emergency communications goals. PKEMRA further established the Emergency Communications Preparedness Center (ECPC), comprising 14 member agencies, to improve coordination and information sharing among federal emergency communications programs.

Question: What issues has the GAO found with implementing collaborative mechanisms?

Answer: GAO previously identified key features and issues to consider when implementing collaborative mechanisms, including interagency groups like the ECPC. GAO found that the ECPC's collaborative efforts were consistent with most of these features, such as those related to leadership and resources, but were not fully consistent with others.

Question: What have interagency groups been called to do?

Answer: For example, one of the key features calls for interagency groups to clearly define goals and track progress, yet the ECPC has not done so.

Question: Because ECPC has not done so, what may member agencies not understand?

Answer: As a result, the ECPC's member agencies might not understand the ECPC's goals or have a chance to ensure that the goals align with their own agencies' purposes and goals.

Question: What is problematic about ECPC’s recommendations regarding emergency communications?

Answer: Furthermore, the ECPC puts forth recommendations that could improve emergency communications. But the recommendations are implemented at the discretion of the ECPC's member agencies and are not tracked.

Question: What does the writer identify as the main issue with ECPC?

Answer: Without a mechanism to track the ECPC's recommendations, it is unclear the extent to which the recommendations are being implemented and the ECPC is missing an opportunity to monitor its progress.

Although the ECPC Follows Most Key Features of Collaboration, It Could Enhance Its Effectiveness

State Emergency Communications Planning Has Improved Since PKEMRA, but States Face Funding and Other Challenges

States’ Planning and Governance Structures have Improved since PKEMRA

Question: What did SWIC's report as being important for emergency planning?

Answer: Almost all of the Statewide Interoperability Coordinators (SWIC) responding to GAO's survey reported that to better plan for emergency communications during disasters, their states have taken the following steps since PKEMRA: (1) developed comprehensive strategic plans for emergency communications that align with the NECP; (2) established SWIC positions to support state emergency communications initiatives, such as developing high-level policy and coordinating training and exercises; and (3) implemented governance structures to manage the systems of people, organizations, and technologies that need to collaborate to effectively plan for emergencies.

Question: What did most SWIC say in response to questions about their response plans?

Answer: In responding to GAO's survey, most SWICs reported not having a comprehensive emergency communications plans in place prior to PKEMRA's 2006 enactment.

Question: How has this changed since PKEMRA was enacted in 2006?

Answer: In particular, prior to the enactment of PKEMRA, only a few states had comprehensive emergency communications plans in place, but now all but one have such a plan.

Question: What do these plans cover?

Answer: Most of the SWICs also reported that their statewide plans cover key elements, such as governance, standard operating procedures, and training and exercises, which are considered by DHS as the essential foundation for achieving the NECP goals.

Enhanced Federal Support for State and Local Emergency Communications Efforts

National Emergency Communications Plan (NECP)

Question: What is important during emergency situations?

Answer: During emergency situations, reliable communications are critical to ensure a rapid and sufficient response.

Question: Why was PKEMRA enacted?

Answer: PKEMRA was enacted in 2006 to improve the federal government's preparation for and response to disasters, including emergency communications.

Question: Why is local communication planning important?

Answer: Given that states and localities are the first line of response following a disaster, states' emergency communications planning is very important.

Appendix II: Survey of Statewide Interoperability Coordinators

Question: What was GAO asked to review?

Answer: GAO was asked to review the implementation of PKEMRA.

Question: What did the report examine?

Answer: This report examines (1) federal efforts to implement PKEMRA emergency communications provisions related to planning and federal coordination, and (2) how states' emergency communications planning has changed since PKEMRA.

Question: How did the GAO conduct their review?

Answer: GAO reviewed relevant reports and documentation from DHS and other agencies; surveyed SWICs from 50 states, the District of Columbia, and 5 territories, receiving 52 responses; assessed the ECPC's collaborative efforts; and interviewed federal and state officials selected for their emergency communications experience.

Question: What future review plans does the GAO have?

Answer: GAO plans to review the implementation of other PKEMRA emergency communications provisions in future work.


The Supreme Court’s First Climate Change Decision: Massachusetts v. EPA

Summary: In 2007, the Supreme Court issued its decision in Massachusetts v. EPA, its first pronouncement on climate change and a singularly important environmental law decision. This report reviews that decision, but leaves coverage of the many EPA actions based on the decision to other CRS reports.

Summary: Massachusetts v. EPA was a case brought to challenge EPA's denial of a petition asking the agency to regulate greenhouse gas (GHG) emissions from new motor vehicles under the Clean Air Act (CAA). By a vote of 5-4, the Court held first that Massachusetts had standing to sue, an issue that took up most of the majority opinion. On the merits, the Court found that the CAA definition of "air pollutant" was unambiguously broad enough to include GHGs. That being so, the Court held, CAA Section 202 authorizes EPA to regulate emissions from new motor vehicles on the basis of their possible climate change impacts. Finally, the Court determined that the phrase "in [the Administrator's] judgment" in Section 202 did not authorize EPA to inject policy considerations into its decision whether to so regulate. For these reasons, the Court reversed the lower court decision upholding the petition denial.

Summary: The Court's decision left EPA with three options for responding to the petition: (1) find that new motor vehicle GHG emissions may "endanger public health or welfare," the prerequisite to limiting them under Section 202, then issue emission standards; (2) find that they do not satisfy that prerequisite, or (3) decide that climate change science is so uncertain as to preclude making either finding (1) or (2). Given the state of climate change science by 2007, it was widely believed at the time that option (1) was the only legally defensible one for EPA. This is the option that EPA took, starting with an "endangerment finding" issued in 2009.

Summary: Since 2007, the finding of standing in Massachusetts generally has not proved helpful to non-state plaintiffs in climate change litigation, leaving intact this considerable threshold hurdle for climate change plaintiffs. In addition, the Massachusetts holding was used, in part, by a 2011 Supreme Court decision to bar federal common law claims against entities based on their contribution to climate change. On the other hand, Massachusetts has been applied by EPA to support regulations not only of motor vehicles but also of stationary sources of GHG emissions. In particular, Massachusetts helped bring about a 2010 litigation settlement that committed EPA to restricting GHG emissions from certain stationary sources of emissions under Section 111 of the CAA. EPA issued two rules based in part on this settlement: New Source Performance Standards (NSPSs) for GHG emissions from new, modified, or reconstructed fossil fuel fired power plants, and emission guidelines (known as the "Clean Power Plan") for GHG emissions from existing fossil fuel fired power plants. Both rules are being challenged in litigation, and the Clean Power Plan was stayed by the Supreme Court in February 2016, as discussed in other CRS reports.

Summary: The Massachusetts decision remains judicially unquestioned. Its holding that the CAA authorizes EPA to regulate GHG emissions remains the governing law, barring Supreme Court reversal or congressional amendment of the CAA.

I n 2007, the Supreme Court issued its decision in Massachusetts v. EPA , its first pronouncement on climate change and still one of the most important environmental law decisions in the past decade. By a vote of 5-4, the Court held that the Environmental Protection Agency (EPA) in 2003 had improperly denied a petition asking the agency to regulate greenhouse gas (GHG) emissions from new motor vehicles under the Clean Air Act (CAA). Contrary to EPA's position, the Court said that the CAA definition of "air pollutant" was unambiguously broad enough to include GHGs. Accordingly, the Court reversed the lower court decision upholding the petition denial.

The Supreme Court decision did not compel EPA to regulate greenhouse gas (GHG) emissions from new motor vehicles, but it did limit the range of options available to the agency so that doing so was its most defensible course of action.

This report confines itself to the Massachusetts v. EPA litigation and leaves to other CRS reports the numerous EPA actions taken as a result of the Supreme Court decision. The report traces the events leading up to the Court's decision, describes the decision itself, notes some general implications, and then comments on the decision's continuing force.

EPA's Denial of the Section 202 Petition

The saga of Massachusetts v. EPA began in 1999. In that year, 19 environmental and energy organizations petitioned EPA to regulate emissions of GHGs (carbon dioxide [CO 2 ], methane, nitrous oxide, and hydrofluorocarbons) from new motor vehicles. The petition argued that EPA had a mandatory duty to do so under CAA Section 202(a)(1), which directs the EPA Administrator to prescribe "standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles ... which, in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare."

In 2003, after receiving about 50,000 comments, EPA denied this petition. Much of the agency's rationale followed a General Counsel memorandum issued the same day. Contrary to a precursor memorandum authored under the Clinton Administration, this new General Counsel memorandum concluded that the CAA does not grant EPA authority to regulate CO 2 and other GHG emissions based on their climate change impacts. Thus, EPA concluded that it had no choice but to reject the petition, though it also described policy reasons for doing so.

Massachusetts v. EPA in the D.C. Circuit

EPA's denial of the Section 202 petition prompted a lawsuit, Massachusetts v. EPA , in the D.C. Circuit seeking review of the denial. Petitioners were 12 states (California, Connecticut, Illinois, Massachusetts, Maine, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington); three cities (New York, Baltimore, and Washington, DC); two U.S. territories (American Samoa and Northern Mariana Islands); and several environmental groups. Opposing the challenge, besides EPA, were 10 state intervenors (Alaska, Idaho, Kansas, Michigan, North Dakota, Nebraska, Ohio, South Dakota, Texas, and Utah), plus several automobile- and truck-related trade groups.

In 2005, a split panel of the D.C. Circuit rejected the suit—in effect upholding EPA's denial of the petition. The two judges supporting rejection of the suit, however, did so for different reasons. Judge Randolph concluded that EPA had properly exercised its discretion in choosing not to wield its Section 202 authority. As to this discretion issue, as noted above, CAA Section 202(a)(1) directs the EPA Administrator to prescribe standards for any motor vehicle emissions that "in his judgment" cause harmful air pollution; Judge Randolph read "in his judgment" broadly to allow EPA consideration of not only scientific uncertainty about the effects of GHGs, but also policy considerations that justify not regulating. Thus EPA, in his view, was entitled to rely on such factors as the George W. Bush Administration's policy preference for voluntary GHG control measures, and its belief that regulating motor vehicle emissions was a piecemeal and inefficient approach to dealing with climate change. Judge Sentelle, the other judge supporting rejection of the petition, held that petitioners lacked standing.

In dissent, Judge Tatel asserted that Massachusetts had demonstrated standing through past and future loss of shore land as a result of climate-change-induced sea level rise. On the merits, he found that EPA has authority under Section 202(a)(1) to regulate GHG emissions. He further concluded that EPA's 202(a)(1) discretion does not extend to policy considerations, as Judge Randolph held, but relates exclusively to whether the emissions cause harmful air pollution.

Massachusetts v. EPA in the Supreme Court

The Supreme Court agreed to review the D.C. Circuit decision in Massachusetts v. EPA , although the D.C. Circuit majority had not ruled on the key issue of whether CAA Section 202(a)(1) authorizes regulation of GHG emissions. As the Supreme Court stated in its decision, "the unusual importance of the underlying issue persuaded us to grant the writ."

The Court ruled 5-4 for petitioner states and environmental groups on all three issues in the case. It held first that at least one petitioner, the Commonwealth of Massachusetts, had standing to sue, so the Court could proceed to the merits. On the merits, it found that the CAA gives EPA authority to regulate GHG emissions from new motor vehicles, and does not give EPA discretion to inject policy considerations into its decision whether to so regulate. The ruling in favor of petitioners was forecast early in the majority opinion by its opening sentences: "A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related." The dissenters did not dispute these statements.

Most of the Supreme Court's decision is devoted to whether plaintiffs had standing to sue, an issue that has recurred in climate change litigation. At the outset, the Court found that petitioners had two factors in their favor. First, the CAA specifically authorizes challenges to agency action unlawfully withheld, such as the Massachusetts suit. A litigant to whom Congress has accorded such a procedural right, said the Court, can assert that right without meeting the normal standards for standing. Second, the Court found it "of considerable relevance" that the petitioner injury on which it focused—Massachusetts's loss of shore land from global-warming-induced sea level rise—was that of a sovereign state rather than a private entity. States are "not normal litigants for the purposes of invoking federal jurisdiction," said the Court, noting their quasi-sovereign duty to preserve their territory.

Although the Court described petitioners' favored position with regard to standing, it then undertook a fairly traditional standing analysis. As to the first prong of the black-letter standing test—whether plaintiff has demonstrated actual or imminent "injury in fact" of a concrete and particularized nature—the Court focused on Massachusetts's status as owner of much of the commonwealth's shore land. That this injury may be widely shared with other coastal states does not disqualify this injury, said the Court; it is nonetheless concrete.

The second prong of the standing test is causation, requiring that the injury of which the plaintiff complains is fairly traceable to the defendant. EPA did not dispute the existence of a causal relationship between GHG emissions and climate change. It did argue, however, that any reduction in GHG emissions achieved through the current litigation would be too tiny a fraction of worldwide GHG emissions to make a cognizable difference in climate change. In an important ruling that may be of benefit to environmental plaintiffs in other contexts, the Court held that even an agency's refusal to take a "small incremental step," here, one that would result in only a modest reduction in worldwide GHG emissions, is enough for standing purposes.

The third and final prong of the standing test is redressability, demanding that the remedy sought by the plaintiff is one likely to redress that plaintiff's injury. In this case, the remedy sought was EPA regulation of GHG emissions from new motor vehicles. The Court found that this remedy satisfied redressability because while it would not by itself reverse climate change, it would nonetheless slow or reduce it. Nor, given the "enormity" of the potential effects of climate change, was it relevant to the Court that the full effectiveness of the remedy would be delayed until existing cars and trucks on the road were largely replaced by new ones.

Compared to the large number of pages devoted by the majority opinion to standing, its discussion of the two CAA issues in the case is relatively brief.

On the question of EPA's authority to regulate GHG emissions, the Court looked to the CAA's "sweeping" definition of "air pollutant," embracing " any air pollutant ... including any physical, chemical ... substance or matter which is emitted into or otherwise enters the ambient air." Such a broad definition, it said, could not be squared with EPA's position that GHGs are not included. The Court rejected EPA's argument that federal laws enacted following enactment of this statutory definition—laws emphasizing interagency collaboration and research—suggest that Congress meant to curtail EPA's power to use mandatory regulations in addressing air pollutants. Nor was the Court moved by EPA's contention that "air pollutant" in the CAA could not include vehicle GHG emissions because EPA standards for such emissions could be satisfied only by improving fuel economy, a job EPA asserted was assigned solely to the Department of Transportation under a different statute (the Energy Policy and Conservation Act).

As to the issue of EPA's discretion, the Court concluded that the phrase "in [the Administrator's] judgment" in CAA Section 202 should be read narrowly. That is, it allows the EPA Administrator, in deciding whether to set emission standards, to consider only whether an air pollutant, in the section's words, "may reasonably be anticipated to endanger public health or welfare." The phrase does not give EPA discretion to factor in its policy preferences. Policy considerations, at least those that led EPA to reject the petition, "have nothing to do with whether greenhouse gas emissions contribute to climate change." Thus, said the Court, EPA can avoid taking further action in response to the Section 202 petition "only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion." In sum, whether EPA decides to act or not, "[it] must ground its reasons for action or inaction in the statute."

Based on its resolution of the authority and discretion issues, the Court reversed the D.C. Circuit opinion, and remanded the case to that court. Months later, the D.C. Circuit vacated EPA's denial of the rulemaking petition and remanded the matter to the agency.

A four-justice dissent by Chief Justice Roberts disputed the majority's finding of standing. A four-justice dissent by Justice Scalia disputed that "air pollutant" in Section 202 includes GHGs.

The Court's decision left EPA with three options for responding to the petition: (1) find that new motor vehicle GHG emissions may "endanger public health or welfare," the prerequisite to limiting them under Section 202, then issue emission standards; (2) find that they do not satisfy that prerequisite, or (3) decide that climate change science is so uncertain as to preclude making either finding (1) or (2). Given the state of climate change science by 2007, it was widely believed at the time that option (1) was the only legally defensible one for EPA. This is the option that EPA took. Based on the Supreme Court ruling in Massachusetts v. EPA , EPA has engaged in efforts to control GHG emissions under a range of CAA programs, beginning with a Section 202 "endangerment" finding in 2009. Since this finding, the agency has regulated GHG emissions from new motor vehicles. Under other sections of the CAA, EPA has regulated GHG emissions from various stationary sources. Most recently, the agency issued its Clean Power Plan rule to regulate GHG emissions from existing fossil fuel fired power plants, but this rule was stayed by the Supreme Court while the rule is challenged in litigation. As indicated earlier, these post- Massachusetts agency actions are described in other CRS reports; here, only a few select points are made in relation to the continuing impact of the Massachusetts v. EPA decision.

The Massachusetts ruling remains in full effect. Its holding that the CAA authorizes EPA to regulate GHG emissions from new motor vehicles is the governing law, barring Supreme Court reversal or congressional amendment.

So far, the finding of standing in Massachusetts generally has not proved helpful to non-state plaintiffs seeking to establish standing in other climate change litigation. Climate change cases since Massachusetts involving non-state plaintiffs and non-CAA causes of action (such as common law nuisance) have largely rejected extending its lenient standard for standing.

The holding of Massachusetts was used by a 2011 Supreme Court decision to bar federal common law claims (such as nuisance) against entities on the basis of their contribution to climate change. Massachusetts strengthened the argument that Congress in the CAA intended to leave no room for courts to develop overlapping federal common law restricting GHG emissions, since it made clear that a congressional enactment, the CAA, was available for that same purpose. Perhaps ironically, this result meant that the victory for the "environmental" side in Massachusetts v. EPA contributed to the defeat for that side in the federal common law case. Though the 2011 ruling of the Court involved plaintiffs seeking a damages remedy, the ruling has been held to displace federal common law actions seeking injunctive relief as well. The availability of state common law claims for reducing GHG emissions remains an open question.

Regulation of GHG Emissions from Stationary Sources Through Permits

With GHGs being regulated under CAA Section 202, EPA proceeded with regulating GHGs under other CAA authorities for stationary sources. In particular, the agency interpreted the mobile source GHG regulations as triggering regulations under the Prevention of Significant Deterioration (PSD) program and Title V permitting program.

In 2014, in Utility Air Regulatory Group v. EPA ( UARG ), the Supreme Court held that EPA cannot regulate a power plant under these authorities solely due to its GHG emissions, but affirmed the agency's authority under the CAA to regulate GHG emissions from power plants if the source is already regulated for other air pollutants. In sum, UARG held that EPA "may not treat greenhouse gases as a pollutant for purposes of defining a 'major emitting facility' … in the PSD context or a 'major source' in the Title V context.… EPA may, however, continue to treat greenhouse gases as a "pollutant subject to regulation under this chapter" for purposes of requiring BACT for 'anyway' sources." The Court in UARG interpreted the Massachusetts decision, saying that it "did not hold that EPA must always regulate greenhouse gases as an "air pollutant" everywhere that term appears in the statute.... Massachusetts does not strip EPA of authority to exclude greenhouse gases from the class of regulable air pollutants under other parts of the Act where their inclusion would be inconsistent with the statutory scheme."

Regulation of GHG Emissions Under CAA Section 111

The Massachusetts ruling upholding CAA coverage of Section 202 GHG emissions contributed to a 2010 litigation settlement that committed EPA to establishing new source performance standards (NSPSs) for GHG emissions from new fossil fuel fired power plants, and emission guidelines for existing fossil fuel fired power plants, under CAA Section 111. EPA published Section 111 NSPSs and emission guidelines for GHGs from power plants in October 2015. Both rules have been challenged in the D.C. Circuit; the emission guidelines rule, known as the Clean Power Plan, is, as noted above, stayed during the litigation.

While some amici curiae supporting the challenges to the Clean Power Plan in that litigation object to the "endangerment findings" that EPA has issued since Massachusetts , the petitioners and intervenors challenging the Clean Power Plan do not dispute or, for the most part, reference the decision. EPA, in defense of the Clean Power Plan, cites Massachusetts repeatedly in its brief, as do several of the intervenors and amici curiae supporting EPA.

Massachusetts may continue to have further reverberations not only in the Clean Power Plan litigation but also in other elements of EPA's clean air program, given its discussion of CAA terms found not only in the CAA sections that EPA has used so far to regulate GHGs. Examples include "air pollutant," "in his judgment," and "may reasonably be anticipated to endanger public health and welfare."

Question: What was Massachusetts v. EPA?

Answer: Massachusetts v. EPA was a case brought to challenge EPA's denial of a petition asking the agency to regulate greenhouse gas (GHG) emissions from new motor vehicles under the Clean Air Act (CAA).

Question: What conclusion did the Court reach about the validity of the case and standing to sue?

Answer: By a vote of 5-4, the Court held first that Massachusetts had standing to sue, an issue that took up most of the majority opinion. On the merits, the Court found that the CAA definition of "air pollutant" was unambiguously broad enough to include GHGs.

Question: What conclusion did the Court reach about CAA Section 202?

Answer: That being so, the Court held, CAA Section 202 authorizes EPA to regulate emissions from new motor vehicles on the basis of their possible climate change impacts. Finally, the Court determined that the phrase "in [the Administrator's] judgment" in Section 202 did not authorize EPA to inject policy considerations into its decision whether to so regulate.

Question: Given this conclusion, what decision did the Court reverse?

Answer: For these reasons, the Court reversed the lower court decision upholding the petition denial.

Question: How has the finding of standing in Massachusetts helped in climate change litigation?

Answer: Since 2007, the finding of standing in Massachusetts generally has not proved helpful to non-state plaintiffs in climate change litigation, leaving intact this considerable threshold hurdle for climate change plaintiffs.

Question: How was the Massachusetts case used in a 2011 Supreme Court decision?

Answer: In addition, the Massachusetts holding was used, in part, by a 2011 Supreme Court decision to bar federal common law claims against entities based on their contribution to climate change.

Question: How did Massachusetts help regarding restricting GHG emissions?

Answer: In particular, Massachusetts helped bring about a 2010 litigation settlement that committed EPA to restricting GHG emissions from certain stationary sources of emissions under Section 111 of the CAA.

Question: What rules were created from this settlement?

Answer: EPA issued two rules based in part on this settlement: New Source Performance Standards (NSPSs) for GHG emissions from new, modified, or reconstructed fossil fuel fired power plants, and emission guidelines (known as the "Clean Power Plan") for GHG emissions from existing fossil fuel fired power plants.

Question: How were these rules responded to?

Answer: Both rules are being challenged in litigation, and the Clean Power Plan was stayed by the Supreme Court in February 2016, as discussed in other CRS reports.

Since the Supreme Court Decision
Standing

Since the Supreme Court Decision
Displacement of Federal Common Law