Based on the relationships and work that have informed this book, it has become apparent to us that we ought to dedicate the last chapter to what we believe relocation scholars should know about how bureaucratic discretion works in conjunction with the law. Initially, we intended the latter part of this book to be a kind of a primer on laws, legal concepts, and legal tools that framed relocation. This was done in part so that relocation scholars and practitioners who have not had legal training could have a technical short course on some concepts; and to put legal constructs in conversation with the critical social sciences and critical social theory. As we were writing, though, we found ourselves over and over again reaching the end of a legal tool or concept’s usefulness, saying, “… and then it’s up to the discretion of the agency and the persons involved.” Repeatedly, we ended up back where we started, with people; people in the context of their organizations, professional training, senses of legal possibility or constraint, and in power-laden relationships. As described in the previous two chapters and in the conclusion of Chapter 3, we believe that legal and regulatory possibilities already exist to enable more just community-led resettlement and to move away from processes that are entirely driven by the market. However, discretion and access to legal protections, tools, and strategies currently limit the realization of such possibilities. Moreover, there are very real costs to attempting to engage with the legal pathways we explore here, including time, financial costs, the risks of failure, and even the impacts to cultural and social identities through the process of conforming to legal and bureaucratic framings of life, value, and community. We also realize that just listing legal possibilities is a piecemeal approach that does not address the range of needs and desires that the many people within a given social geographic context may have, and is not guaranteed to render equal assistance to all members of that community. Additionally, there are very few communities, community allies, and consultants who have a grasp of the many areas of the law that are required to render community-resettlement and justice together. Part of understanding the shifting risk landscape is thinking through the hows and whys of action and inaction, and what pursuing these paths mean for different people and existing struggles for justice and equity.

The concept of discretion is a highly theorized and important concept in the field of public administration. It refers to the ways in which public officials, or at times their contractors, make decisions, about seemingly very minor and inconsequential things, that greatly impact the implementation of public policies (Scott, 1997). Street-level bureaucracy, the exercise of discretion by front-line bureaucrats, such as those who interface with the public at regulatory agencies or facilities such as an Office of Motor Vehicles, can have a tremendous impact on the lived experiences of policies by the individuals who interact with government as citizens and consumers (Lipsky, 1980). In effect, these street-level bureaucrats become policymakers in a very literal sense. In the context of floodplain management, climate adaptation, and hazard mitigation, these interactions can lead to markedly different outcomes depending upon agency cultures and individual decisions. Real time, normative assumptions made by individuals taking calls for FEMA (as an example) about individuals seeking information or assistance (as an example) can have dramatic consequences on whose house is repaired and whose remains in disrepair (Jerolleman, 2019).Footnote 1 As these decisions accumulate, they can generate other assumptions, such as what is the highest and best use, whose neighborhood “shouldn’t have been there in the first place,” and where relocation seems like a foregone conclusion.

Discretion is often protected from legal challenges, unless it directly violates constitutional protections. For example, discretion is explicitly protected by the Stafford Act’s non-liability provision:

The Federal Government shall not be liable for any claim based upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Federal Government in carrying out the provisions of this chapter.Footnote 2

Seen through the lens of “judicial ecology”—a heuristic to think not just about the courts, but how law is shaped by activism and social actions (Mahmood & Cousins, 2022)—administrative discretion alone does not determine access to resources, instead the courts and the administration of the law, including administrative law, influences and is influenced by the access and control that different individuals have to resources.

Therefore, any discussion of law and policy is incomplete without some consideration of the role of implementing agencies and governance (interactions between social systems and government via laws, regulations, etc.) more broadly. This book concerns itself primarily with law, how law, particularly property law, has operated in the distant past, in contemporary relocation scenarios, and whether the law can or cannot be put in service of community needs and aspirations relative to resettlement. However, laws are not created in a vacuum—and the creation of laws alone is not sufficient. Public administration scholarship has long recognized that the devil is in the details. Many well-intentioned legal and policy interventions fail due to a wide range of issues that emerge during implementation, including a failure to imagine unintended consequences and/or erroneous assumptions regarding local needs and desires (Hudson et al., 2018). Similarly, degrees of willing compliance across scales of government are also implicated in the success or failure of various policy interventions, particularly in the face of wicked and challenging social problems (May & Burby, 1996). Complex policy questions and legal issues require the exercise of discretion, but discretion can also bring in ethnocentric assumptions and perpetuate injustice.

If we, as authors, are exploring underutilized areas of the law (Chapter 8), and pointing to places in the law where reinterpretation may better foster justice (Chapter 7, for example), then we are also required to articulate an understanding of how laws are implemented, and the complex relationships between laws, regulations, and discretion. Implementation of law frequently transpires within federal agencies or the bureaucratic state. For example, the Stafford Act contains many instances in which a FEMA Regional Administrator can waive certain provisions. One example of incredible importance for our purposes here is that FEMA is broadly unable to build new, permanent housing after a disaster. If one of our arguments is that climate relocation implicates a broader housing crisis in the United States, then this legal restriction on building new houses is a unique obstacle to utilizing FEMA resources for just resettlement. However, a regional administrator can waive the restriction on building new housing, if certain conditions are met. Although this discretionary ability has only been used in certain circumstances, it is possible to imagine the role that such a discretionary ability could play for disaster affected communities that need new housing stock.

The bureaucratic state, also referred to as the administrative state or the fourth branch of government, does a great deal of policymaking via implementation of statutes, regulations, and other mechanisms.Footnote 3 Laws are created by Congress, signed into Law by the Executive branch, and then implemented via regulations—with the courts playing a role when challenges arise. Agencies promulgate both legally binding guidance, but also interpretive policy documents and memoranda that simply explain the more prevalent interpretations of regulations. Guidance documents are an important tool for agencies, as they can recommend and suggest, while still allowing implementation to occur in ways that make the most sense locally. This creates several avenues for bureaucratic discretion, particularly when rules are purposefully left with a great deal of flexibility, in order to account for the substantially variability in state and local conditions. For example, regulations for hazard mitigation planning, contained in the Code of Federal Regulations, solely state that the public must be engaged but do not dictate much more than notice and meetings, leaving a great deal of discretion in how engagement is defined by states, counties, and their contractors (Jerolleman, 2013). Again, in our example of Isle de Jean Charles (Chapter 3) and Kinston (Chapter 4), we see that engagement is a critical part of relocations—that it is organized at the discretion of local agencies is important to remember.

All levels of government must be considered in an analysis of discretion and policy implementation. Planning processes are impacted by federal laws and regulations, creating a complex set of interactions between agencies and levels of government, with discretion present at all scales. Hazard mitigation planning, for example, occurs at the county and state level, but is reviewed by FEMA’s regional offices. Hazard mitigation grant applications are submitted by counties to the state, which then typically makes decisions regarding which ones might move forward for FEMA’s consideration. Additionally, as was previously described, any land use regulations are crafted and implemented at the local level while a great deal of environmental and climate regulation is done at the state and federal level. Although this chapter concerns itself primarily with federal processes, state governments typically mirror the national government, also creating statutes via legislative processes that are then implemented by state agencies. Similarly, local government entities exercise some discretion in how they implement state and federal programs, as well as with regard to whether to pursue resources for climate adaptation and hazard mitigation. This can include decisions regarding what areas to protect, where to focus resources, kinds of future development in geographies that overlap with state or federal planning initiatives, and even where and with whom to create access to funding mechanisms that require the state to serve as the grant recipient. Furthermore, regulatory mechanisms, protective measures, and development decisions across different scales are often in direct conflict. Along the east coast, for example, housing is being developed in vulnerable zones at a rate that is two to three times faster than in safer locations (Marandi & Man, 2021). This is occurring at the same time as buyout and acquisition efforts are underway in similarly situated neighborhoods and communities. In some cases, the acquisitions themselves are facilitating new development in neighboring locations.

Regulatory Mechanisms

Regulatory mechanisms are a frequently used tool for climate adaptation, along with incentive programs, and other bureaucratic mechanisms. In the United States, Congress often grants federal agencies the authority for the implementation of legislation, via the creation of regulations that carry the force of law. These regulations are created and promulgated via processes such as rulemaking, following procedures that are either established by the enabling legislation or by the Administrative Procedure Act (APA) (CRS, 2021). Under the rulemaking process, agencies provide notice and comment and receive feedback from interested parties. In practice, this feedback is often given by professional associations, think tanks, lobbying groups, and other entities who wish to promote their interests. Some public administration scholars have raised concerns about regulatory capture, where stakeholders that are intended to be regulated by rules, instead play a key role in writing those same rules. In some cases, such as hazard mitigation planning, there have been arguments made that the linkages are so tight between the rulemakers and the contractors who stand to benefit as to essentially constitute privatization of the service (Jerolleman, 2013). For example, the same firms that assisted with the creation of the regulations for hazard mitigation planning later bid on contracts to conduct the work locally and on contracts to be reviewers of those same plans on behalf of FEMA (Jerolleman, 2013).

There are also beneficial possibilities associated with the existing rulemaking process, including the opportunity for community leaders and their advocates to influence rules that directly impact their efforts at climate adaptation. Public comments can lead to minor victories with long-term implications. For example, several tribal entities responded to a rulemaking process relating to Environmental Justice within the EPA and requested language that read the agency would engage with Tribes and Indigenous persons. That change was made, increasing access for non-federally recognized tribes and also creating a model that other agencies might consider following. A major hurdle lies in the reality that this opportunity requires a substantial time and resource investment with little guarantee of a payout. For example, a recent promulgation of revised rules for hazard mitigation numbered over three hundred pages and only gave community members a few weeks in which to respond. Many such calls for comment may be in effect at the same time and across a range of agencies. In early 2023, for example, FEMA had multiple such calls as did HUD and the EPA. It is also often the case that comments are acknowledged but do not directly lead to changes in language.

Another advantage of the rulemaking process is the reduction of the burden on Congress and the opportunity for technical expertise to be brought to bear. The administrative state is tasked with the implementation of statutes and creation of rules in order to both prevent Congress from being bogged down in the minutia of how each and every law will be implemented and to allow agency expertise, as well as outside expertise, to be brought to bear on more technical problems (CRS, 2021). It also allows for dissenting voices in civil society to make themselves heard, and to have their comments on the record even if the agencies do not meet their requests. This dynamic may also provide a buffer from a changing political climate, leading to a greater level of stability as most mid-level personnel within agencies do not change over as presidential administrations change. Congress does though retain the power to pass statutes that compel agencies to repeal certain rules, limit their power, or expand it.

Courts can also play a role under judicial review processes, per the APA. While administrative law accords a great deal of deference to agencies, a court can compel agency action where it has either been withheld unlawfully or unreasonably delayed if the agency’s actions were: arbitrary or capricious; exceeded statutory authority; contradicted statutory authority; or, violated procedures under the statuteFootnote 4 (CRS, 2021). Agencies also promulgate interpretive rules, reports, and other products that serve as guidance regarding interpretations of the law, but lack the force of law (CRS, 2021). This type of guidance is subject to far fewer procedural requirements and not subject to the APA. The promulgation of guidance allows agencies to act more quickly, and to provide additional information to the public and other interested parties regarding how the agency intends to utilize its discretion in interpreting rules. However, the lack of legal authority behind guidance limits its application.

Communities interacting with federal and state agencies are often provided with federal guidance and rules, with no distinction being made between the two. One tool of bureaucratic power is to rely upon the lack of understanding and knowledge of bureaucratic processes among the general public. Community leaders and advocates are handed lengthy agency memos, reference to the Code of Regulations, and other similarly unapproachable documents and told that the law prevents the type of action that the community leaders are seeking. However, in some cases, there is ample discretion that bureaucrats choose not to exercise in support of flexible solutions for communities. The distinction between rules and guidance is a particularly important one in these situations. It is also worth noting that agencies become accustomed to treating certain types of guidance as law and lose, or “forget,” their own flexibility over time as a series of interpretations of flexible rules become reified and delimit the bounds of future interpretations (Jerolleman, 2013).

Bureaucratic Discretion

Bureaucratic discretion, as well as political motivations that can influence bureaucratic decision-making, can play a substantial role in the determination of which communities should be encouraged to retreat in the face of climate risks and which communities should be assisted with their efforts at adapting in place (Marandi & Man, 2021). These decisions also play a role in the ways in which buyout programs are administered, including whether residents are given alternatives to relocation or permitted to act communally. Scholars have noted in the context of disaster recovery that “… discretion is likely to be used to the disadvantage of those least informed of their legal rights, particularly families with limited resources who lost personal records and had difficulty meeting documentary requirements, such as proof of occupancy, damage, personal poverty loss, and insurance coverage” (Hooks & Miller, 2006, 51). Even public planning processes often exacerbate existing inequities as they are led by administrators who better understand the regulatory limitations and often have predetermined solutions. The decision to go forward with a particular project, or utilizing a particular mechanism, represents an exercise of informed discretion and decision-making. There are several issues that agency representatives must consider to determine what regulatory mechanisms can be utilized by an agency or how their work is constrained by regulation. These include: identifying if the agency has the requisite authority, ensuring statutory and regulatory compliance, and taking into account constitutional compliance, in particular takings and due process (Georgetown Climate Center, 2020). Community members who engage with these processes are not fully conversant in the laws and regulations, and therefore cannot always adequately advocate for themselves, nor can they identify the discretionary points. Similarly advocates, social scientists, allies, and others may also not be fully conversant in the laws and regulations.

There are many other areas in which bureaucratic discretion plays a role in climate adaptation. One of these is with regard to disaster declarations. According to the federal General Accounting Office, “declaration decisions are not supported by standard factual data or related to published criteria” (Downton & Pielke, 2001). One scholar, Richard Sylves, has suggested that the bureaucratic politics model is the most appropriate for understanding disaster declarations where the decisions at the presidential level are the outcome of negotiations that involve elected officials and appointees (2020). However, he also noted that an organizational process model applied to routine events, where decisions are more often left to delegates and lower ranking officials (Sylves, 2020).

… the policies and policy recommendations generated in the executive branch of government and passed on to the chief executive [and often the legislature] are often the by-product of bureaucratic turf wars, interoffice competition, and expedient compromise between administrative chieftains rather than products of reasoned analysis about how to most effectively and efficiently carry out the law and policy commitments of the elected chief executive so as to serve the public interest. (Sylves, 2020, 53)

Disaster declarations have a direct impact on the availability of funds that are needed for climate adaptation and community resettlement efforts. FEMA has interpreted the Stafford Act to exclude slow-moving disasters from disaster declarations, limiting funding and assistance for slow-moving disasters such as drought and thawing permafrost. Both of these events have a direct impact on communities seeking to relocate (GAO, 2020). As mentioned before, a recent analysis of the use of FEMA elevation grants showed an alarming pattern in which, for the majority of the states analyzed, over half of the funding went to wealthy communities and to mostly white communities. In four states, over 75% of funds went to wealthy communities, and in six states almost half of all funds received had been spent in just one affluent or white community (Frank, 2022). The federal government exercises discretion in deciding how to allocate funds, while states exercise discretion in terms of where to promote programs, how much to assist counties, and even whether they will assist with matching requirements. In the case of these elevations, many recipients were able to leverage increased property values and decreased insurance costs to sell their newly elevated homes at a substantial profit. This outcome, the government subsidizing profit creation for wealthy homeowners as a hazard mitigation strategy, is avoidable. In the same analysis, North Carolina and Virginia made different decisions. These states covered the local match requirement for families, allowing lower-income families to access the program without a financial barrier, and the patterns of privilege did not hold (Frank, 2022). Discretionary decisions can be a powerful tool to change these patterns of racialized and income inequity without changing the law, as well as a tool for better utilizing the law in service of justice.

Higher-income communities have more political influence, more grant writing capacity, and the ability to generate proof of eligibility due to benefit–cost logistics, but as we see in the example above, this is not impossible to overcome. FEMA is attempting to direct a greater percentage of its hazard mitigation funds to communities that are considered socially vulnerable, as part of Justice40. This is an effort that, if successful, may also show the importance of bureaucratic intent in furthering more equitable outcomes. This effort, via BRIC, has so far been criticized as grants were still given to higher-income counties. For example, in fiscal year 2020, 94% of BRIC grants were awarded to wealthier coastal states and counties, and not to communities that lacked capacity for hazard mitigation (Headwater Economics, 2022). In fiscal year 2021, after a concerted effort to produce more equitable outcomes, only 80% of funds went to coastal states, but only two states in the interior received the bulk of the remaining mitigation funding (Headwater Economics, 2022).

A final example, described in Chapters 3 and 5, was evident in the Isle de Jean Charles resettlement. State planners conceptualized the resettlement as a complicated real estate transaction, focusing on the transfer of individual property ownership while dismissing the Tribal planning that had been instrumental in securing federal funding. The state asserted their discretion in a substantial amendment request to HUD in 2019, three years after the funding was awarded and deep into the fraught planning process. According to one state planner, maintaining good standing between the state agency (the grantee) and HUD (the granter) in order to ensure future funding was among their priorities. Community experiences and expectations were largely marginalized from the equation. Not only did state actors reframe the resettlement away from the Tribal community vision, but they were also permitted to do so by HUDs regulatory checks and balances such as amendment processes for action plans, relying on a HUD principle of “maximum feasible deference” to grantees. This principle essentially suggests that HUD permits the grantee, in this case the state, to apply its own discretion in interpreting regulations to the maximum extent possible.

Many federal agencies have sought to devolve control to the states in an effort to better account for local needs, but this does not necessarily guarantee more equitable outcomes. In fact, some of the authors of this book are increasingly interested in the origins of the “maximum feasible deference” principle and the shift from “maximum feasible participation” to “maximum feasible deference.” The Housing and Community Development Act of 1974 established the Community Development Block Grant (CDBG) program, from which the CDBG-DR National Disaster Resilience funding has its roots. Before CDBG, during 1960s War on Poverty programs, HUD had advanced a principle of “Maximum Feasible Participation,” which was embraced initially (Melish, 2010; Rubin, 1969), but then became a threat to local political regimes when Black communities asserted their rights to meaningful participation in ways that challenged local elites and racial structures. For example, Sherry Arnstein (1972) published the experiences of North City Area Wide Council of Philadelphia as they navigated the Model Cities program in the piece Maximum Feasible Manipulation. The piece chronicles the exploitation that troubled sanctioned participation and the tensions that emerged as actual participation in implementing federal program’s challenged local power brokers and the status quo.Footnote 5

Although several opportunities existed for state and federal partners to support the Tribe in retaining its core objectives, the state agency chose instead to apply a strict interpretation of existing regulations for the use of HUD funds, forgoing the spirit of innovation that was intended to be a hallmark of the National Disaster Resilience Competition. This is also a lesson in the limitations of innovation within existing mechanisms. The National Disaster Resilience Competition was envisioned as a partnership between the federal government and the Rockefeller Foundation intended to bring innovation to disaster risk reduction. “However, program implementation still relied on HUD’s existing regulatory authorities and on the agency bureaucrats who had not been part of that visioning. For example, relinquishing title to previous land is typical when resettlement is funded via voluntary buyouts. Tribal community members, however, have advocated for retaining ownership of land from which the community is resettling and maintaining ongoing relationships to that ecology through seasonal or temporary habitation, subsistence fishing, ceremony, recreational and economic development, among other uses. After Tribal advocacy, the state eventually agreed with this innovation albeit with the use of restrictive homeowner agreements that prevent substantial repairs to Island houses, habitation, economic uses, and other activities (Jessee 2022; Simms et al. 2021)”.

Administrative Evil

Just as Serkin raised the question of whether affirmative duties exist in the Constitution, one can also ask what duties the government, and its front-line representatives, have to the communities they serve. This includes the duty to exercise discretion in support of justice. The failure to exercise available discretion in the face of life threatening and lifeway destroying consequences, due to blind adherence to habitual interpretations of regulations, can also be understood as a form of administrative evil (Jerolleman, 2019). For example, blind application of rules and regulations with disregard for the tremendously destructive consequences of such rules and regulations, particularly when alternatives are available, is one frequent way in which administrative evil is perpetuated. Another clear way in which administrative evil is consistently perpetuated is through the unwillingness to consider the role of colonial logics and histories of disenfranchisement and genocide on the ability of Indigenous communities to successfully utilize and access resources.

In the case of the Isle de Jean Charles resettlement effort, for example, tribal citizens and leaders were penalized for a lack of federal recognition and for the limitations of the formal property ownership rights of the tribe. Even if the detrimental impacts to the Tribe were not intentional, though they clearly were (Baurick, 2022), the failure to consider harms caused by reducing the Jean Charles Choctaw Nation to but one of many stakeholders led the state to continue the pattern of historic violence that marks Indigenous/colonial encounters. One might imagine a scenario in which the potential concerns with the Fair Housing Act were immediately brought to the Tribe and HUD’s attention by the state, and all three came together as partners in order to identify the best way to meet tribal primary needs and aims in the project. Historic examples of land dispossession were clearly intentional, and often justified by convoluted legal and normative gymnastics. More contemporary examples are often hidden in opaque technocratic processes and couched in the language of equality, community engagement, or public benefit. As Jessee notes (2022, 277): “… state efforts to transform the resettlement from what Tribal leaders viewed as ‘an act of cultural survival’ to a scalable model for managed retreat policy threatens to reproduce a frontier dynamic whereby colonial and capitalist futures are once again rested upon the erasure of indigenous peoples.” Direct negative impacts are dismissed as coincidental or as a result of inherent capacity deficits within communities, such as a lack of knowledge or staff to manage processes, as described in Chapter 5, when Louisiana state planners and contractors repeatedly told the Tribe they could not mow the lawn of the new site and therefore should not be afforded the opportunity to own land or otherwise have a sustained institutionalized presence in the new development. Even when capacity deficits exist, which may be the result of a long history of colonization and displacement, one might envision government support for filling these gaps and investing in capacity building as a key role of government. Giving the Tribe office and museum space and collectively held land in the resettlement site, for example, could have been just this kind of support to enhance capacity.

Can Bureaucratic Discretion Be Used in Service of Community Desires?

There are examples of federal agencies working with community leaders to identify novel ways in which to apply rules and regulations. One such example took place on the Pine Ridge Indian Reservation, following a disaster declaration in 2019, where a Permanent Housing Mission was authorized.Footnote 6 Typically, following a disaster declaration under the Stafford Act that includes Individual Assistance, eligible families are assisted with temporary housing. This can include temporary trailers under the Direct Housing Authority, but these are typically only available for up to eighteen months. On Pine Ridge, the majority of the housing stock was manufactured homes and repairs were simply not feasible. Working with tribal leadership, FEMA field leadership made the decision to push for a permanent housing mission.

Permanent housing is only permitted under a certain set of circumstances: (1) bringing in temporary housing would be cost prohibitive; (2) infeasible; and (3) the supply is lacking. In the past, permanent housing had only been infrequently permitted and then only in places such as Alaska or island territories. FEMA leadership worked with the Office of Inspector General to make the argument that it was not possible to bring in travel trailers at the scale needed, or within a reasonable time window. Around 100 permanent units were brought in and Pine Ridge is considered a success story. Yet, front-line personnel at FEMA were at times uncomfortable stepping outside of traditional limits and other efforts to bring a permanent housing mission to states such as Florida and Louisiana have subsequently failed.

However, these examples depend on a complex array of actors, all of whom are willing to work in service of that community vision. While this is not an impossible scenario, it is quite unlikely and not one that is easily scaled or replicated. There are far more examples of discretion being utilized to deny assistance, such as the community of Pinhook that was flooded in 2011 and has struggled to receive any federal assistance. The homes were part of a USACE spillway, but had been the only ones that African Americans were permitted to purchase. Although the land could legally be flooded, residents were not even notified and were later denied assistance because the flooding was permissible. “They feel that they lived in peace, obeyed laws, paid their taxes, observed regulations and conventions; they established a respectable community that was self-sufficient and even prosperous. But when decisions were being made about whether or not to destroy their community, they were not consulted. They were never even notified” (Lawrence & Lawless, 2018, 142).

Conclusion

Discretion can make the best use of existing laws and policies while new ones are conceptualized and codified. The successful exercise of discretion within agencies can also point to new possibilities, as exceptions and pilot efforts become codified into the realm of the possible. One of the conclusions we have reached is that laws matter; but that people enacting, interpreting, and trying to foster new social space within the laws also matter. If people within an agency or state are trying to maximize the law’s potential to protect people, especially overburdened people, from harm, then—while existing laws may make some actions more difficult—they may also be enough to produce just outcomes. If the laws change substantively in ways that are intended to protect overburdened and historically marginalized communities, but a city, state, or agency is trying to maximize the law’s potential to protect property values—then any change to law may not be enough. On the other hand, changes to law, or interpretation of law by the courts, in some cases, can make material changes happen almost immediately. These spaces of interaction between law and people are critical; and justice and injustice is bound to both.