No one really expected FEMA’s leadership of the coronavirus response to be inspiring or even, to put it bluntly, moderately competent. Still, I’ve been puzzled by several reports from state leaders and others that federal authorities have been confiscating purchased medical supplies without explanation or, at least in one case, compensation.
I don’t mean situations where a federal agency outbids someone or orders a vendor to sell to the federal government instead. That happens, too, and the practice is controversial. I’m talking about instances in which federal officials show up unannounced at a warehouse or a port and physically seize crates of medical gear that had been on their way to some needy hospital or test center that had paid or agreed to pay for them. The agent flashes a badge, the goods are trucked out, and no one knows where they go.
According to reports in the Los Angeles Times and The New York Times, this kind of thing has happened in several states, from Washington to New Jersey to Florida. One case involved a shipment of three million N95 face masks that the state of Massachusetts had ordered from BJ’s Wholesale Club. According to Massachusetts Gov. Charlie Baker, the masks, which were intended for his state’s health care workers, were instead seized without explanation by federal authorities (he didn’t say what agency) at the port of New York. That surprise sent the resourceful governor scrambling for a last-minute fix that involved a Chinese supplier, a foreign ambassador, and a jet borrowed from the New England Patriots.
Then there is George Gianforcaro, the owner of a small medical supply company in Delaware, who stood dumbfounded as FEMA officials hoovered up tens of thousands of face masks he was supposed to deliver to sites in Delaware and Michigan. He says FEMA officials gave no reason and didn’t compensate him, either. Gianforcaro says he’s out millions of dollars and has hired a lawyer.
When confronted with these reports, the White House has landed on a simple explanation: none of this is really happening. FEMA Administrator Peter Gaynor agrees. In a recent letter to his emergency managers, Gaynor said these claims of seizures are actually just a big “myth” that he wants his staff to help “bust.” Under a heading titled, “Continue to Bust Myths,” he writes:
As I continue to do calls with Members of Congress, Governors, and other key stakeholders, I find myself correcting misinformation. One of the areas I get the most questions about is regarding FEMA “seizing” or “commandeering” critical PPE [personal protective equipment.] I want to share the ground-truth with you—FEMA is neither seizing or [sic] taking PPE from local or state governments or taking PPE from hospitals or any commercial entity lawfully engaged in the PPE distribution.
The trouble is all those members of Congress, governors, and stakeholders – to say nothing of the nation’s scared and beleaguered hospital workers, letter carriers, and quasi-federalized meatpackers – are seeing a different “ground-truth,” the one testified to by contractors and governors who are in the midst of a desperate search for the supplies they need to keep people alive. Meanwhile, workers and consumers are being pushed to “open the economy” without proper protective gear and testing; state leaders are told they’re responsible for finding their own supplies and forced, Hunger Games-style, to battle other states for resources our national leaders refuse to responsibly expand, allocate, and monitor; and reports continue to surface of suspiciously timed supply diversions with no obvious point other than, perhaps, to punish an outspoken governor, frustrate over-complaining veterans hospitals, or reward the friends of the president’s son-in-law.
Thus, two House committees have asked FEMA to turn over documents related to reports of these confiscations. They also want to know about the involvement of Jared Kushner, President Trump's son-in-law, who is said to be “overseeing” the efforts of Administrator Gaynor in allocating coronavirus-related medical supplies.
At this point, some of you may be asking if these seizures, as reported, are even legal. First, let me say it’s heartening, in this day and age, you still worry about such things. Second, recognizing an important limit, the answer is yes. The Stafford Act, which governs the federal response in civil emergencies, specifically authorizes FEMA to “procure by condemnation” any privately owned “materials and facilities for emergency preparedness.” That would include medicine, ventilators, protective gear, and anything else (except for guns, of course – the act has a special provision against seizing those). The Defense Production Act, for those following the legal issues closely, no longer grants federal authorities the power to seize private property, but the Stafford Act is really all FEMA needs.
As for limits, both the Stafford Act and general due process concerns would disallow a seizure unrelated to a legitimate goal. If punishing an outspoken governor were the only justification an official could come up with, there would be trouble. Also, the Fifth Amendment to the Constitution famously requires just compensation when government takes your property. Had someone at FEMA read the amendment to the end, they would have seen it. So if George Gianforcaro, the medical supplies distributor from Delaware, is describing his situation accurately, Administrator Gaynor owes him an apology – and a check.
Showing 2,819 results
Robert Verchick | April 30, 2020
No one really expected FEMA’s leadership of the coronavirus response to be inspiring or even, to put it bluntly, moderately competent. Still, I’ve been puzzled by several reports from state leaders and others that federal authorities have been confiscating purchased medical supplies without explanation or, at least in one case, compensation. I don’t mean situations where a federal agency outbids someone or orders a vendor to sell to the federal government instead. That happens, too, and the practice is controversial. I’m talking about instances in which federal officials show up unannounced at a warehouse or a port and physically seize crates of medical gear that had been on their way to some needy hospital or test center that had paid or agreed to pay for them. The agent flashes a badge, the goods are trucked out, and no one knows where they go.
Katie Tracy | April 27, 2020
Tomorrow, April 28, is Workers' Memorial Day, a day the labor movement established to mourn workers killed on the job and to renew the fight for the living. This year, as the coronavirus pandemic grinds on, taking its toll on workers and their families, we’re reminded more than ever of how critical it is to guarantee all workers the right to a safe and healthy workplace. Even before COVID-19, a typical day in the United States saw 14 workers killed on the job – hardworking people who set out for work, never to return home. In 2018, 5,250 workers – one worker every 100 minutes – died on the job. Black and Latinx workers were hit hardest in 2018, with a 16 percent increase from 2017 in black worker deaths and a 6 percent increase in Latinx worker deaths.
Lisa Heinzerling | April 24, 2020
On April 23, 2020, the Supreme Court ruled, 6-3, that the Clean Water Act requires a permit when a point source of pollution adds pollutants to navigable waters through groundwater, if this addition of pollutants is "the functional equivalent of a direct discharge" from the source into navigable waters. Perhaps the most striking feature of Justice Stephen Breyer's opinion for the majority is its interpretive method. The opinion reads like something from a long-ago period of statutory interpretation, before statutory decisions regularly made the central meaning of complex laws turn on a single word or two and banished legislative purpose to the interpretive fringes.
Darya Minovi | April 23, 2020
On Earth Day, the Environmental Integrity Project (EIP), a CPR ally, released a new report on nitrogen pollution from poultry operations in the Chesapeake Bay watershed. Using data from the Chesapeake Bay Program’s pollution modeling program, EIP found that approximately 24 million pounds of nitrogen pollution from the poultry industry entered the Chesapeake Bay’s tidal waters in 2018. That's more than from urban and suburban stormwater runoff in Maryland and Virginia combined, and it can contaminate drinking water sources of nearby communities and feed huge algal blooms in the Bay that block sunlight, choking off fish and plant life.
Brian Gumm | April 21, 2020
On April 17, CPR Board President Rob Verchick joined EPA enforcement chief Susan Bodine and other panelists for an American Bar Association webinar on environmental protections and enforcement during the COVID-19 pandemic. During the event, Bodine expressed "surprise" that the agency's pandemic enforcement policy was so roundly criticized, but she shouldn't have been caught off guard by those critiques. As Verchick noted during the discussion, "The problem with [weakening monitoring and pollution reporting requirements] is that fenceline communities have no idea where to look. They have no idea if the facilities in their backyards are…taking a holiday from pollution requirements or not."
Michael C. Duff | April 21, 2020
With COVID-19 cases contracted at work on the rise, labor and employment attorneys, businesses, advocates, and workers are all wondering if their state’s workers’ compensation law will apply, and alternatively, if an ill worker could file a lawsuit against their employer. The answers to these questions are not simple, as workers’ compensation laws vary by state, and when it comes to occupational diseases, the applicability of workers’ comp is often even more complicated. In a recent post on Workers’ Compensation Law Prof Blog, CPR Member Scholar Michael Duff discusses the so-called workers’ compensation “grand bargain,” under which workers receive no-fault benefits for work-related injuries and illnesses in exchange for giving up their right to file a lawsuit against their employer. In his post, Duff explores the circumstances in which a worker who has contracted COVID-19 at work may still have the right to file a lawsuit (getting around the “exclusivity bar”), as illustrated by a recently filed wrongful death case in Illinois, Evans v. Walmart. In this case, plaintiffs argue that two Walmart employees, Wando Evans and Phillip Thomas, passed away due to complications from COVID-19 contracted while working for the big box retailer.
Katie Tracy | April 20, 2020
As the coronavirus pandemic wears on, reports abound of essential frontline workers laboring without such basic protective gear as masks, gloves, soap, or water; with improper distancing between workstations and coworkers; and in workplaces alongside infected colleagues. So far, nearly 4,000 workers have filed complaints with the federal Occupational Safety and Health Administration (OSHA), raising concerns about health and safety conditions inside the workplace. Yet the agency has been largely absent at a time it is most needed. Shamefully, as COVID-19 illnesses rise in slaughterhouses, grocery stores, hospitals, and other worksites across the nation, the agency has chosen to go against its very mission of protecting America’s workers, ignoring calls to adopt emergency standards and rolling back its enforcement efforts.
Matthew Freeman | April 17, 2020
On April 14, CPR's James Goodwin took part in a virtual hearing, hosted by the Union of Concerned Scientists, on the EPA's "censored science" rule, an effort by EPA to exclude from its rulemaking process a range of scientific studies that industry finds uncongenial to its anti-regulatory views. In his testimony, Goodwin dismantles EPA's contention that the rule is grounded in law, observing that there are no credible legal underpinnings for the proposal.
Daniel Farber | April 17, 2020
During the coronavirus crisis, Dr. Anthony Fauci has become the voice of reason. Much of the public turns to him for critical information about public health while even President Trump finds it necessary to listen. In the Trump era, no one plays that role in the environmental arena. The result is a mindless campaign of deregulation that imperils public health and safety. We can't clone Dr. Fauci or duplicate the unique circumstances that have made his voice so powerful. However, we can do several things that would make it harder for administrations to ignore science.