Letter From The President of The Association Of The Bar Of The City Of New York

2005-11-01 01:00

To The Readers Of The Metropolitan Corporate Counsel:

For weeks the headlines contained reports commenting extensively on the failures of our government to intervene and respond promptly and effectively to the impact of Hurricane Katrina in the Gulf Coast region, particularly in New Orleans.But now, in the halls of Congress and the offices of government agencies, we are beginning to see government overreaction through efforts to take steps far beyond what is needed to provide relief to local governments and companies involved in relief efforts.This overreaction threatens to undermine important protections under laws that may be suspended or avoided by virtue of legislative or executive action.

Several examples come readily to mind. First, a bill has been introduced in the Senate that would grant the Environmental Protection Agency unprecedented authority to ignore federal and state environmental laws for a period of 18 months. As we pointed out in our letter of protest to members of the Senate, the bill is overly broad and unnecessary to deal with the aftermath of Hurricane Katrina because waivers can be granted administratively and because there is no need for a blanket waiver over such a long period of time.

Similarly, reports have reached us that the Department of Education is going to propose legislation that will allow local school districts to ignore requirements of the McKenney Vento Homeless Education Assistance Act. This act requires any school to accept the children displaced by Hurricane Katrina. As we pointed out in the letter we submitted to congressional representatives, "waiving these requirements will undermine a law that protects the most vulnerable of us at a time when the need for such protection is especially critical."Any necessary waivers can be granted on an ad hoc basis without the categorical, across the board undermining of important, protective federal laws.

In another arena, the federal government has also suspended operation of the Davis-Bacon Act in many counties of Alabama, Louisiana and Mississippi, and the Miami area of Florida. The Davis-Bacon Act requires that construction companies bidding on government contracts must pay the prevailing wage in the area in which the work is to be done. The suspension is of indefinite duration and is not limited to repairing Katrina-related damage. (The prevailing wage in New Orleans is around $9 per hour for laborers.) In addition, companies seeking new government contracts for Katrina-related projects will also be exempted, for three months, from developing written affirmative action programs.

These efforts suggest that the federal government may be engaged in a calculated and intentional effort to use the tragedy caused by Hurricane Katrina to suspend the operation of legislation that the Administration would prefer to see off the books because the laws do not conform to the Administration's general philosophy. By contrast, proposals to ease the potentially draconian requirements of the new bankruptcy laws, scheduled to take effect on October 17th, have as of this writing gone nowhere.

Whatever the reason for these overly broad suspensions of laws that embody important and long-standing societal values,these efforts teach us that we must be vigilant in our examination of government action, especially now, to protect not only the victims of Hurricane Katrina but also the rights of all of our citizens.


Bettina Plevan