A guest post by “Ada Rae”

It’s a cold winter morning in Chester County, PA. I look out my window, the temperatures are below freezing, with wind chills in the single digits. Sinkholes have exposed the antiquated ME1 pipeline again. The wind is strong and gusting. I’ve been watching the flag outside for awhile now. First it blows in one direction then it changes decidedly to the other direction. Which direction is actually upwind, the direction I’m supposed to head if there’s a leak? In an emergency, I won’t have the luxury of time to sit around and see which way the flag tends to be blowing more often. In fact, today, I would guess that moving “upwind” actually takes me towards the pipeline. Not a great option.

For people who live in close proximity to Sunoco’s Mariner East pipelines, this is our reality. Because sometime during the course of this massive failure of an experiment that is Mariner East, Sunoco told all of us to self-evacuate upwind at least a half-mile… and it stuck. So let’s begin by dismantling the notion that this is an acceptable course of action because it is not. If it doesn’t work for a considerable percentage of the population, then it isn’t really a plan.

In an emergency, who gets abandoned? We live in a post-9/11 and post-Hurricane Katrina world. Some of the most important lessons learned from these catastrophes were that in times of crisis and widespread emergency it was the elderly, infirm, poor, and people with disabilities that were affected most severely, left behind, and experienced higher death tolls. According to 2018 data from the CDC, 1 in 4 US adults has a disability. Mobility issues being the leading impairment so many persons with disabilities (PWDs) are unable to exit their homes on their own. Others, who are blind or hearing-impaired have difficulty contacting and communicating with emergency responders, and often use assistive technology. Even in best-case scenarios, emergency response communication systems are pushed to their limits when responding to a large scale event. Circuits can quickly become overloaded, cell phones are rendered useless, 911 operators may not have sufficient information available in real time. For PWDs, all of these issues are compounded, making communication significantly more difficult.

Instead of adopting a generic Emergency Response Plan that seemingly works for most people, we must do the complex work of assessing the unique threats in our communities, understanding the specific needs of all people who live in our community, and developing plans that ensure equal access and services in times of distress and crisis. Only when that is achieved can the community rest safely.

Since 9/11, Hurricane Katrina and Tropical Storm Irene, the courts have made several landmark decisions in class action lawsuits which established that PWDs have a legal “Right to be Rescued.” These cases were based on the strong protections afforded under the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA) of 1973, which provide a legal framework to ensure that no person with a disability is excluded from participation or denied the services of a public entity. Both acts are written to address intentional and unintentional discrimination.

The cases, in both California and New York, have helped define what an adequate emergency plan for PWDs actually is. Why is this important here – to you and me? Because the Pennsylvania Emergency Management Agency (PEMA) publishes a Handbook for Elected Officials, which they describe as a tool “to provide elected officials with a basic understanding of the fundamental legal requirements to ensure an effective emergency management program in each county and/or municipal government in the Commonwealth”. It is striking to note that neither the ADA nor the RA is included in the list of Federal laws and Presidential Directives impacting local government. Both are completely omitted.

Let’s look at New York. Postmortem studies of the 1993 World Trade Center bombing and the 9/11 attacks showed that PWDs had been left behind in both instances. Because of the lack of evacuation assistance, these people did not even have a choice of whether or not to evacuate and essentially were left behind to die. A class action lawsuit filed in September 2011 alleged that while Mayor Bloomberg and the City created emergency plans for the general population they failed to account for the City’s disabled, who are especially vulnerable in times of emergencies and disasters, and this failure violated the ADA, the RA, and the New York City Human Rights Law.

The class action was filed on behalf of all persons with disabilities in the City of New York who had been and were being denied the benefits and advantages of New York City’s emergency preparedness program. The plaintiffs did not seek monetary damages but they wanted systemic changes.

The lawsuit argued that effective community plans must include nine essential components:

  • comprehensive emergency plans
  • assessments of the efficacy of emergency plans
  • identification of the needs that will arise and resources to meet those needs
  • public notification and communication
  • policies or procedures concerning the concept of shelter in place
  • plans to provide shelter for those forced to evacuate from their homes
  • assistance with evacuation and transportation
  • plans for provision of temporary housing when evacuees cannot return home
  • plans for recovery and remediation efforts after an emergency or disaster

Though the City argued that fear of a future disaster did not constitute legal standing for a class action suit, the judge found the plaintiffs did have standing based on the threat of future harm and the fear and apprehension caused by it, saying “it is beyond mere conjecture that another disaster, whether natural or man-made, will occur and that it will seriously affect members of the proposed class.” He further found that the “court would be in no better position later than now to resolve the claims presented. Indeed, to conclude otherwise would be perverse, as it would mean that plaintiffs could bring their claims only after their worst fears have been realized.”

The judge found that the City of New York’s emergency response plans failed to comply with the Americans with Disabilities Act, the Rehabilitation Act, and the NYC Human Rights Act. The ruling found that the emergency plans were inadequate to ensure that PWDs are able to evacuate before or during an emergency, that accessible shelters were available, that PWDs were not adequately informed of the availability or location of these services.

The City’s evacuation plans were found to “fail almost entirely” for PWDs. Over the course of the next year, the two sides worked together to reach a settlement that would address the deficiencies, including the creation of a high-level position within the office of Emergency Management to address the specific needs of PWDs.

Lessons for us. How often have you heard the question “what is it going to take before someone does something about Mariner East?” or “it’s not until somebody dies that Governor Wolf is going to do something about this.” Isn’t there synergy between the cases mentioned above and the formal complaints pending in front of the PUC over lack of a credible safety plan? These landmark cases show that heart-wrenching stories of lives lost are not the prerequisite for the courts to order sweeping, systemic changes. Certainly, state and local government entities would be well advised to learn from these landmark cases and test the emergency programs for compliance, making critical revisions now.

The laws behind these court cases are federal laws, and they apply in Pennsylvania. If our state and local officials fail to come up with adequate emergency plans, they may find themselves in the same legal jeopardy as officials in California and New York. There is no time to waste: this issue must be addressed now.

[Editor’s note: Disability Rights Advocates (https://dralegal.org) was the group that won the New York and California cases mentioned here.]