Primary legal bases would be (1) the Constitution’s Supremacy Clause and the related federal preemption doctrine (federal law or valid federal regulation can supersede conflicting state/local law), (2) specific federal statutes and delegated agency authorities (most relevantly the Robert T. Stafford Disaster Relief and Emergency Assistance Act and FEMA’s implementing regulations), and (3) the federal spending power by which the federal government can attach conditions to grant funds (which can limit or condition state/local permitting through enforceable grant terms). Any agency preemption would still need statutory authority and be subject to judicial limits under preemption and administrative-law doctrines.
Likely legal challenges: (a) lack of statutory authority/express preemption—courts require a congressional text or clear regulatory grant before displacing state law; (b) APA/ultra vires claims that agencies exceed their statutory powers or fail to follow required rulemaking (notice‑and‑comment); (c) Spending‑Clause limits and anti‑coercion arguments (conditions on federal funds must be unambiguous and not coercively transform state sovereignty); (d) Tenth‑Amendment/home‑rule or anti‑commandeering arguments (federal compulsion of state/local functions is limited); and (e) constitutional and statute‑specific claims concerning environmental/historic reviews (NEPA, ESA, NHPA) and due process. Remedies would include injunctions, vacatur of agency rules, and declaratory relief.
The Hazard Mitigation Grant Program (HMGP) is a FEMA grant program created under the Stafford Act that provides funding to States, territories, tribes, and local governments to implement hazard‑mitigation projects after a major disaster declaration. HMGP allocations are tied to the estimated Federal cost of the disaster and are administered under FEMA rules; grants are awarded to project sponsors and subject to FEMA requirements, approved project scopes, and post‑award oversight and audits.
The EO requires DHS/FEMA to: (1) determine within 30 days whether any portion of California’s nearly $3 billion in unspent HMGP awards were made arbitrarily or unlawfully; (2) complete a federal audit within 60 days of the order’s date assessing completion/timeliness, risk‑reduction results, and use of funds; and (3) within 30 days after the audit make administrative determinations and pursue appropriate actions including imposing future grant conditions, pursuing recoupment/recovery where authorized, or deploying oversight/technical assistance. Outcomes could therefore include new grant conditions, oversight, technical assistance, or lawful recoupment/recovery actions, but any recoupment or sanctions must follow applicable statutory and administrative procedures.
A federal “builder self‑certify to a Federal designee” process would substitute (or sit in for) state/local permit reviews by allowing builders to certify compliance with applicable substantive state and local health and safety standards to a federal designee (an agency official or contractor). In practice agencies would issue implementing regs describing the self‑certification form, eligibility, recordkeeping, verification sampling, and post‑approval inspections; the EO directs agencies to continue reviewing repairs for compliance. Compliance mechanisms would include federal monitoring and audits, on‑site inspections, revocation of federal funding, civil administrative enforcement, and (where authorized) recoupment of federal funds for noncompliance.
The order cites the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the National Historic Preservation Act (NHPA) as authorities to expedite waivers, permits, reviews, or consultations for federally funded rebuilding. Legal limits: none of those statutes permit blanket suspension of required protections; agencies must comply with statutory procedures and consultation requirements except where a statute expressly authorizes otherwise (or where specific emergency statutory authorities allow narrow, time‑limited exceptions). Courts and implementing agencies require that any narrowing or expedited review be lawful, be limited in scope/duration, and meet statutory standards (e.g., ESA consultation requirements and NHPA review obligations).
Possible federal legislative proposals FEMA and SBA could propose include (examples): (1) express statutory preemption authority for specified disaster‑recovery permitting conflicts or a federal permitting backstop for use of federal disaster funds; (2) clearer conditional‑grant rules and expedited federal waiver authority to allow builder self‑certification tied to federal oversight; (3) streamlined, statutory fast‑track procedures for environmental/historic reviews in narrowly defined emergency circumstances; and (4) stronger audit, recoupment, and compliance authorities for HMGP and other FEMA grants. Any proposal would need to respect constitutional limits (preemption/anti‑commandeering/spending‑clause doctrines) and existing environmental laws or provide tailored narrow exceptions.