Editor's note: Lawfare has also compiled an overview of state quarantine and isolation authorities available to governors in responding to the pandemic. You can read that overview here.
The coronavirus has spread to all 50 states, the District of Columbia and multiple territories, with case totals still increasing rapidly in the United States. Governors across each of the states and territories have been responsible for much of the response, enacting restrictions on nonessential businesses and enforcing stay-at-home orders. On Lawfare, several of us previously reviewed the U.S. state and territory laws authorizing quarantine and isolation. Here, we review the other emergency authorities that state and territory executive authorities possess to address the pandemic. We have prioritized states with the most cases and will continue updating by alphabetical order.
Alabama, Alaska, American Samoa, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Northern Mariana Islands, Ohio, Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, U.S. Virgin Islands, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming
One authority across the 50 states and most inhabited territories is the Emergency Management Assistance Compact (EMAC). It is an “all hazards - all disciplines mutual aid compact” ratified by Congress. All 50 states, the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands and the Northern Mariana Islands have enacted legislation to become EMAC members, which permits them to assist in emergency response efforts in other states. EMAC members can send personnel, equipment and commodities to other states, and transfer services and conduct virtual missions.
California’s Emergency Services Act, codified in California’s Government Code, Title 2, Division 1, Chapter 7 at §§ 8550-8669.7, recognizes the state’s responsibility “to mitigate the effects of natural, manmade, or war-caused emergencies that result in conditions of disaster or in extreme peril to life, property, and the resources of the state, and generally to protect the health and safety and preserve the lives and property of the people of the state.” The act confers upon the governor and governing bodies of political subdivisions of the state certain emergency powers. It also provides for state assistance in organizing and maintaining emergency programs in the political subdivisions; a state Office of Emergency Services within the Office of the Governor; the assignment of functions during an emergency to state entities and their coordination and direction; and the rendering of mutual aid by the state government and its departments, agencies and political subdivisions. Additionally, the Emergency Services Act authorizes “the establishment of such organizations and the taking of such actions as are necessary and proper to carry out the[se] provisions.” The governor may make, amend and rescind orders and regulations necessary to carry out the provisions of the California Emergency Services Act under § 8567; widespread publicity and notice is required of any such orders, regulations, amendments or recissions.
The governor of California may proclaim a state of emergency under § 8625 in an area affected or likely to be affected if the conditions defined by § 8558 are satisfied. This section defines a state of emergency as “the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons and property within the state caused by conditions such as air pollution, fire, flood, storm, epidemic, riot, drought, cyberterrorism, sudden and severe energy shortage, plant or animal infestation or disease,” and more. Under § 8629, the governor “shall proclaim the termination of a state of emergency at the earliest possible date that conditions warrant,” at which point all the emergency powers granted to the governor by the state of emergency chapter terminate. The state of emergency may also be terminated by a concurrent resolution of the legislature. Sections 8630-8634 provide procedures for a local emergency, which may be declared by proclamation of a city or county governing body or by an official designated by ordinance adopted by that governing body.
Under § 8570, the governor has a range of powers to mitigate the effects of an emergency, for example, evaluating the need for food, clothing and other necessities; planning for and procuring supplies, medicines, materials and equipment; providing for mobile support units; and instituting training programs and public information programs. The governor also has the power to proclaim the existence of martial law under § 8574.
During a state of emergency, to the extent he deems necessary, the governor has, under § 8627,
complete authority over all agencies of the state government and the right to exercise within the area designated all police power vested in the state by the Constitution and laws of the State of California in order to effectuate the purposes of [the California Emergency Services Act] and “shall promulgate, issue, and enforce such orders and regulations as he deems necessary, in accordance with the provisions of Section 8567.
The governor may temporarily suspend any statute, ordinance, regulation or rule imposing a nonsafety-related restriction on the delivery of food, pharmaceuticals and other emergency necessities under § 8627.5; again, widespread publicity and notice is required. Additionally, if during a state of emergency the governor determines that strict compliance with any regulatory statute, statute prescribing the procedure for conduct of state business, order, rule or regulation “would in any way prevent, hinder, or delay the mitigation of the effects of the emergency,” the governor may suspend it under § 8571.
The governor is authorized by § 8572 to “commandeer or utilize any private property or personnel deemed by him necessary in carrying out [these] responsibilities” and the state will pay a reasonable value. This does not extend to any newspaper, newspaper wire service, or radio or television station, though the state may use any news wire service if no other means of communication is available and the state pays a reasonable value.
During an emergency, under § 8645, the governor may make expenditures from “any fund legally available in order to deal with actual or threatened conditions of a state of war emergency, state of emergency, or local emergency,” in addition to any appropriation made to support emergency services and activities, and under § 8566, the governor is empowered to expand any appropriation for support of the California Emergency Services Act. Chapter 7 provides a range of immunities at §§ 8655-8660.
Under California’s Health and Safety Code, § 101080, the state director of health services or the local health officer may declare a local health emergency in a jurisdiction or area affected by a health emergency, including “an imminent and proximate threat of the introduction of any contagious, infectious, or communicable disease.” Additionally, under §§ 101040 and 101475, the local health officer or city health officer “may take any preventive measure that may be necessary to protect and preserve the public health from any public health hazard during any ‘state of war emergency,’ ‘state of emergency,’ or ‘local emergency,’” and “may certify any public health hazard resulting from any disaster condition if certification is required for any federal or state disaster relief program.” Under § 1797.150, the Emergency Medical Services Authority, in cooperation with the Office of Emergency Services, “shall respond to any medical disaster by mobilizing and coordinating emergency medical services mutual aid resources to mitigate health problems.”
Finally, California’s constitution provides authority for urgency statutes when “necessary for immediate preservation of the public peace, health, or safety,” and the California Government Code, Title 2, Division 3, Part 1, Chapter 3.5, Article 5 provides for emergency regulations.
On March 10, Gov. Jared Polis declared a state of emergency via Title 24 § 24-33.5-704. Under part four this section the governor can declare a disaster emergency by executive order or proclamation if s/he finds a disaster has occurred or is imminent. The state of disaster/emergency can continue until the governor finds that the threat of danger has passed, the disaster has been dealt with or ceased to exist. A state of emergency cannot last more than thirty days without the governor renewing it and the general assembly, by joint resolution, can terminate a state of disaster emergency.
Part five of this law mandates that a declaration of a state of emergency activates the disaster response and recovery aspects of the state, local and interjurisdictional disaster emergency plans. Additionally, during a state of emergency, part six in this same section makes the governor the commander-in-chief of the organized and unorganized militia and of all other forces available for emergency duty. Finally part seven of this same statute also gives the governor the power the following powers in a state emergency:
Suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders, rules, or regulations of any state agency, if strict compliance with the provisions of any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency
Utilize all available resources of the state government and of each political subdivision of the state as reasonably necessary to cope with the disaster emergency;
Transfer the direction, personnel, or functions of state departments and agencies or units thereof for the purpose of performing or facilitating emergency services;
Commandeer or utilize any private property if the governor finds this necessary to cope with the disaster emergency;
Direct and compel the evacuation of all or part of the population from any stricken or threatened area;
. . .
g. Control ingress to and egress from a disaster area, the movement of persons within the area, and the occupancy of premises therein.
§ 24-33.5-705 within the same title, also creates the Office of Emergency Management and makes it responsible for creating “a comprehensive emergency management program that includes policies, plans, and procedures that address the preparation, prevention, mitigation, response, and recovery from emergencies and disasters.” Part three of this section also tasks the Office of Emergency Management with taking part in the development and revision of local and interjurisdictional emergency management plans. These local plans are required as part of § 24-33.5-707. Part two of this section also requires each county to maintain an emergency management agency or participate in a local or interjurisdictional emergency management agency. Part four also states that the minimum composition of a local emergency management agency is a director or coordinator appointed and governed by the chief executive officer or governing body of the jurisdiction.
Under § 24-33.5-709 the principal executive officer of a political subdivision can also declare a local disaster or emergency. The effect of such a declaration is to activate the response and recovery aspects of any and all applicable local and interjurisdictional disaster emergency plans and to authorize the furnishing of aid and assistance under such plans. However, no local state of emergency can be continued or renewed beyond seven days except by or with the consent of the governing board or political subdivision.
The governor of Connecticut may declare two types of disaster state of emergency: a “civil preparedness emergency” under Connecticut General Statutes § 28-9, and a public health emergency under § 19a-131. On March 10, Gov. Ned Lamont invoked both laws.
The governor may declare a civil preparedness emergency under § 28-9 in case of “serious disaster, enemy attack, sabotage or other hostile action or in the event of the imminence thereof.” His emergency declaration may be disapproved only by majority vote in a joint legislative committee—with various key legislators included in the majority. Such a disapproval vote must be filed with Connecticut’s secretary of state within 72 hours of the governor’s announcement to take effect.
Under a civil preparedness emergency, the governor has broad general powers. First, under § 28-9, the governor may “personally take direct operational control of any or all parts of the civil preparedness forces and functions in the state.” He and the Connecticut commissioner of public health, by § 28-7(f), may each use such personnel as well as auxiliary forces, like firefighters and police, as either deems necessary to protect health and safety.
Further, under § 28-9(1), the governor may suspend or modify—for up to six months—any part of a law, regulation or requirement “in conflict” with the “efficient and expeditious” execution of civil preparedness or public health protection. He may under § 28-9(2) order state, local or joint officers into mobile support units or other civil preparedness forces. He may restrict the movement of vehicles and individuals by § 28-9(4), take “appropriate measures” to protect inmates and children in schools by § 28-9(5), and order the evacuation of effective and endangered areas by § 28-9(6). The governor by § 29-9(7) may also, “in light of the emergency,” take any other “reasonably necessary” steps. And § 28-9(8) provides that the governor may achieve each of the foregoing by executive order.
Section 28-9 also specifically enumerates significant gubernatorial powers in civil preparedness emergencies regarding housing, debris clearing and acceptance of federal funds.
As for housing, § 28-9a(a) grants the governor three powers. First, he may purchase or lease “temporary housing units,” in conjunction with any U.S. agency, for occupation by disaster victims in the state. Second, he may support any political subdivision providing such housing by lending it funds available to the governor’s office, passing through to it U.S. agency funds, or backstopping its debts by becoming a “copartner” with it in providing temporary housing. Third, the governor may alter or suspend, for up to 60 days, “any” state “public health, safety, zoning, transportation or other requirement of law or regulation” if “essential” for temporary housing assistance. Section 28-9a(b) also authorizes political subdivisions themselves, to purchase, lease or otherwise acquire (temporarily or permanently) the sites to locate temporary disaster-relief housing, as well as make any other arrangements to “prepare or equip” such sites.
Under § 28-9(c), the governor may, through any agency or other state “instrumentality,” clear from public or private lands debris that threatens public or private safety, and he may transfer federal funds to political subdivisions for this purpose. Employees of the governor may enter private lands only after receiving authorization by the property owner.
Section 28-9(b) lets the governor apply for federal loans on behalf of any political subdivision that has lost “substantial” revenue from a disaster and has demonstrated a need for financial assistance to perform government functions. He may give state backing for applications of loans up to 25 percent of the region’s annual operating budget.
The Connecticut General Statutes also gives municipality executives broad civil-preparedness emergency powers. Section 28-8a lets executives in locations where emergencies occur take measures they “deem necessary to mitigate” the emergency and secure pertinent evidence for future investigations. Additionally, a § 28-9 emergency also triggers § 42-230, which prohibits raising prices of any item sold in a location subject to the declaration, beyond the “fluctuation in the price of items sold at retail” occurring in the “normal course of business.”
By invoking a § 19a-131 public health emergency, the governor assumes a different set of powers. Section 19a-131(8) defines a public health emergency as follows:
[A]n occurrence or imminent threat of a communicable disease, except sexually transmitted diseases, or contamination caused or believed to be caused by bioterrorism, an epidemic or pandemic disease, a natural disaster, a chemical attack or accidental release or a nuclear attack or accident that poses a substantial risk of a significant number of human fatalities or incidents of permanent or long-term disability.
The governor may declare a state of public health emergency only after making a “good faith” effort to inform various legislative leaders beforehand of his intent. A vote of the legislature can disapprove of his declaration on similar terms as for a § 28-9 emergency.
Declaring a § 28-9 emergency grants the governor five main powers, those of:
- Authorizing the commissioner to isolate or quarantine persons.
- Ordering the commissioner to vaccinate persons.
- Applying for and receiving federal assistance.
- Ordering the commissioner to suspend certain license renewal and inspection functions during the emergency and six months after its end.
- Ordering the commissioner to implement the public health emergency response, as developed under § 19a-131g by the commissioner, in conjunction with various state and municipal regulators and state legislators.
For quarantine and isolation measures, § 19a-131b allows the commissioner (if authorized by the governor) to quarantine or order into isolation any individual or group if three conditions are met. First, the commissioner must have “reasonable grounds” to believe such persons infected with, exposed to or able to communicate an infectious disease. Second, he must determine that the individual or group poses a “significant threat” to public health. Finally, he must deem quarantine or isolation “necessary” and the “least restrictive means” to protect public health. Subjects of a quarantine or isolation order may, by subsection (f), appeal that order to the probate court. The commissioner under § 19a-131c may direct any law enforcement officer to take those violating quarantine or isolation orders into custody and place them in quarantine or isolation, respectively.
For vaccination orders, under § 19a-131e, the governor may order the commissioner to vaccinate individuals as he deems “reasonable and necessary” to prevent or arrest disease or contamination. Individuals (or for minors, their guardians) may refuse vaccination for any reason, but § 19a-131e(b) provides for the commissioner to quarantine those refusing vaccination if they meet the three requirements above (for § 19a-131b). Individuals may also appeal a vaccination order to the probate court. The commissioner may, if ordered to vaccinate by the governor, authorize under § 19a-131f any “qualified” individual to administer vaccinations as “necessary.”
As for licensing, § 19a-131j provides for suspension of various licensing, license renewal and inspection requirements. Upon only a § 19a-131 emergency declaration, the commissioner may suspend various licensing requirements to allow people licensed in another U.S. state, district or territory to provide “temporary” assistance managing the emergency within the scope of their profession. Upon either a § 19a-131 or § 28-9 emergency, the commissioner may suspend renewal requirements for any license for the duration of the emergency and six months afterward. Under the same two emergency declarations, the commissioner may also suspend any inspection requirements for the same period of time.
Finally, in a public health emergency, § 28-11 lets the governor take property “necessary” to protect the public in enumerated categories, including the following: land, vehicles and transportation infrastructure, equipment, pharmaceutical or biological products, food, livestock and fuel. The governor may use such property in whatever way serves “the best interests” of state inhabitants, including selling or leasing it. He must provide just compensation upon seizing property and grant the original owner the first opportunity to repurchase it after it is no longer necessary.
Chapter 252 of the Florida statutes governs emergency management. Section 252.36 details the Florida governor’s emergency management powers. Subsection (1)(a) broadly states that the governor is “responsible for meeting the dangers presented to this state and its people by emergencies.” If local authorities cannot control an emergency, the governor “may assume direct operational control over all or any part of the emergency management functions” within the state and carry out the provisions of the section. The governor may also delegate powers “as she or he may deem prudent.”
Subsection (2) permits the governor to declare a state of emergency through an executive order or proclamation if the governor finds that an emergency has occurred or the occurrence or threat of an emergency is imminent. The state of emergency will continue until the governor finds “that the threat or danger has been dealt with to the extent that the emergency conditions no longer exist.” The state of emergency cannot continue for longer than 60 days unless the governor renews it. The governor can terminate the state of emergency through an executive order or proclamation. The legislature may also terminate a state of emergency at any time through a concurrent resolution, upon which the governor must issue an executive order or proclamation ending the emergency. All executive orders or proclamations the governor issues pursuant to this subsection must “indicate the nature of the emergency, the area or areas threatened, and the conditions which have brought the emergency about or which make possible its termination.” They must also be “promptly disseminated” in a way that alerts the public as to their contents.
Subsection (3) states that an executive order or proclamation of an emergency will do three things. First, it will “[a]ctivate the emergency mitigation, response, and recovery aspects of the state, local, and interjurisdictional emergency management plans” that apply to the affected area. Second, the order or proclamation is the authority “for the deployment and use of any forces to which the plan or plans apply and for the use or distribution of any supplies, equipment, and materials and facilities assembled, stockpiled, or arranged to be made available” pursuant to statutory provisions. Third, the order or proclamation must “[i]dentify whether the state of emergency is due to a minor, major, or catastrophic disaster,” which are defined as disasters differing as to the degree of assistance required to deal with them.
Subsection (4) provides that the governor is the commander-in-chief of the Florida National Guard and other forces available for duty during a state of emergency.
Subsection (5) then grants the governor additional powers to deal with an emergency:
(a) Suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of any state agency, if strict compliance with the provisions of any such statute, order, or rule would in any way prevent, hinder, or delay necessary action in coping with the emergency.
(b) Utilize all available resources of the state government and of each political subdivision of the state, as reasonably necessary to cope with the emergency.
(c) Transfer the direction, personnel, or functions of state departments and agencies or units thereof for the purpose of performing or facilitating emergency services.
(d) Subject to any applicable requirements for compensation under [another statutory provision], commandeer or utilize any private property if she or he finds this necessary to cope with the emergency.
(e)–(g) [provisions dealing with evacuation]
(h) Suspend or limit the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles. ...
(i) Make provision for the availability and use of temporary emergency housing.
(j) Take effective measures for limiting or suspending lighting devices and appliances, gas and water mains, electric power distribution, and all other utility services in the general public interest.
(k) Take measures concerning the conduct of civilians, the movement and cessation of movement of pedestrian and vehicular traffic prior to, during, and subsequent to drills and actual or threatened emergencies, the calling of public meetings and gatherings, and the evacuation and reception of civilian population, as provided in the emergency management plan of the state and political subdivisions thereof.
(l) Authorize the use of forces already mobilized as the result of an executive order, rule, or proclamation to assist the private citizens of the state in cleanup and recovery operations during emergencies when proper permission to enter onto or into private property has been obtained from the property owner. ...
(m) Authorize businesses and their employees who sell commodities ... to exceed the times of curfews for the purpose of ensuring that the supplies of commodities are made available to the public and direct local law enforcement to assist and accommodate those businesses and their employees in ensuring that commodities are available in coping with the emergency.
(n) By executive order, authorize the operator of solid waste disposal facilities to extend operating hours to ensure the health, safety, and welfare of the general public.
Subsection (6) empowers the governor to give any direction to state and local law enforcement officers and agencies “as may be reasonable and necessary for the purpose of securing compliance with the provisions” the emergency statutory provisions. Subsection (7) permits the governor to also “employ such measures and give such directions to the Department of Health and the Agency for Health Care Administration as may be reasonably necessary for the purpose of securing compliance with the” emergency statutory provisions or with the health agency’s findings or recommendations.
Subsection (8) states that the governor should delegate responsibilities to state officers and agencies and must use the existing state services and facilities, including personnel and other resources, as the “primary emergency management forces of the state.” All officers and agencies must cooperate with this mandate. To carry out the emergency provisions, the governor may also establish agencies and offices and appoint personnel pursuant to subsection (9). Finally, subsection (10) empowers the governor to control traffic to “provide for the rapid and safe movement or evacuation over public highways and streets of people, troops, or vehicles and materials for national defense or for use in any defense industry.”
If the governor finds that regularly appropriated funds are not enough to deal with an emergency, the governor “may make funds available by transferring and expending moneys appropriated for other purposes, by transferring and expending moneys out of any unappropriated surplus funds, or from the Budget Stabilization Fund.” This statutory section also discusses acceptance of funds or supplies from the federal government.
Section 252.33 provides limits on the construction of the statutory emergency powers. The emergency powers may not be construed to “interfere with dissemination or comment on public affairs,” though media providers may be required to transmit or print messages relating to the emergency. The powers may also not be construed to “[a]ffect the jurisdiction or responsibilities of police forces, firefighting forces, units of the Armed Forces of the United States, or any personnel thereof, when on active duty.” However, state, local and interjurisdictional emergency plans should rely on the forces that are available for emergency functions. The emergency powers also do not limit the power of the governor to proclaim martial law or exercise any other powers.
All actions, orders and rules taken pursuant to the emergency powers must also take into account the “orders, rules, actions, recommendations, and requests of federal authorities” and should be shall be consistent with them “to the extent permitted by law.” This is to work toward uniformity across the country to manage an emergency.
Section 252.38 in turn governs the emergency powers of political subdivisions, including counties and municipalities. These powers include the authorities:
- To appropriate and expend funds; make contracts; obtain and distribute equipment, materials, and supplies for emergency management purposes; provide for the health and safety of persons and property, including emergency assistance to the victims of any emergency; and direct and coordinate the development of emergency management plans and programs in accordance with the policies and plans set by the federal and state emergency management agencies.
- To appoint, employ, remove, or provide, with or without compensation, coordinators, rescue teams, fire and police personnel, and other emergency management workers.
- To establish, as necessary, a primary and one or more secondary emergency operating centers to provide continuity of government and direction and control of emergency operations.
- To assign and make available for duty the offices and agencies of the political subdivision, including the employees, property, or equipment thereof relating to firefighting, engineering, rescue, health, medical and related services, police, transportation, construction, and similar items or services for emergency operation purposes, as the primary emergency management forces of the political subdivision for employment within or outside the political limits of the subdivision.
Fifth, the political subdivision may request state assistance. It may also invoke emergency-related mutual aid assistance by declaring a state of local emergency in the event an emergency affects only one subdivision. The state of emergency may last only for seven days, and may be extended in seven-day increments. The subdivision also has the power to waive procedural requirements pertaining to contracts, employment, equipment rental, acquisition and distribution of supplies, materials, and facilities, and appropriation and expenditure of funds.
Two or more adjoining counties may request an interjurisdictional arrangement, or the governor may find that such an arrangement is more appropriate. In that case, the governor may delineate an interjurisdictional area for emergency response. Such finding by the governor is based on one or more specified factors that relate to the “difficulty of maintaining an efficient and effective emergency prevention, mitigation, preparedness, response, and recovery system on a unijurisdictional basis.”
The Department of Health is the primary state agency that handles communicable disease management. Section 381.0011(7) provides that the department must “[m]anage and coordinate emergency preparedness and disaster response functions to: investigate and control the spread of disease; coordinate the availability and staffing of special needs shelters; support patient evacuation; ensure the safety of food and drugs; provide critical incident stress debriefing; and provide surveillance and control of radiological, chemical, biological, and other environmental hazards.” The state health officer is also responsible for declaring public health emergencies, issuing public health advisories, and ordering isolation or quarantines. On March 1, Gov. Ron DeSantis accordingly directed the state health officer to declare a public health emergency and directed him to “take any action necessary to protect the public health” pursuant to § 381.0011(7).
Under the Georgia Code § 38-3-51, the governor may declare a state of emergency or disaster in the event of an “actual or impending emergency or disaster of natural or human origin, or pandemic influenza emergency, or impending or actual enemy attack, or a public health emergency, within or affecting this state or against the United States.” The governor must call for a special session of the General Assembly two days after the declaration in order to concur or terminate the disaster declaration. The state of emergency or disaster will last until the governor finds the threat or danger has ended, but it may not last longer than 30 days unless renewed by the governor. The General Assembly can also terminate the state of emergency at any time by concurrent resolution.
The declaration activates the emergency and disaster response and recovery sections of the state and local emergency or disaster plans for the political subdivision or area at risk and directs deployment and use of any forces and use or distribution of supplies and materials.
(1) To enforce all laws, rules, and regulations relating to emergency management and to assume direct operational control of all civil forces and helpers in the state;
(2) To seize, take for temporary use, or condemn property for the protection of the public in accordance with condemnation proceedings as provided by law;
(3) To sell, lend, give, or distribute all or any such property among the inhabitants of the state and to account to the proper agency for any funds received for the property; and
(4) To perform and exercise such other functions, powers, and duties as may be deemed necessary to promote and secure the safety and protection of the civilian population.
In addition to these emergency powers, the governor may also:
(1) Suspend any regulatory statute prescribing the procedures for conduct of state business, or the orders, rules, or regulations of any state agency, if strict compliance with any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency or disaster;
(2) Utilize all available resources of the state government and of each political subdivision of the state as reasonably necessary to cope with the emergency or disaster;
(3) Transfer the direction, personnel, or functions of state departments and agencies or units thereof for the purpose of performing or facilitating emergency services;
(4) Commandeer or utilize any private property if he finds this necessary to cope with the emergency or disaster;
(4.1) Compel a health care facility to provide services or the use of its facility if such services or use are reasonable and necessary for emergency response. The use of such health care facility may include transferring the management and supervision of the health care facility to the Department of Public Health for a limited or unlimited period of time not extending beyond the termination of the public health emergency;
(5) Direct and compel the evacuation of all or part of the population from any stricken or threatened area within the state if he deems this action necessary for the preservation of life or other disaster mitigation, response, or recovery;
(6) Prescribe routes, modes of transportation, and destinations in connection with evacuation;
(7) Control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein;
(8) Suspend or limit the sale, dispensing, or transportation of alcoholic beverages, explosives, or combustibles; provided, however, that for purposes of this paragraph, the terms "explosives" and "combustibles" shall not include firearms or ammunition or any component thereof; and
(9) Make provision for the availability and use of temporary emergency housing.
In case of a disaster or other grave emergency, the governor has the power under § 38-2-6 “to order all or any part of the organized militia into the active service of the state for such period, to such extent, and in such manner as he may deem necessary.” The governor may also create mobile support units to reinforce emergency management organizations in affected areas under § 38-3-26 or provide mobile support units to aid another state. Under § 38-3-4, law enforcement authorities of the state and political subdivisions are to enforce orders, rules and regulations issued pursuant to Title 38, Articles 1 through 3.
The governor has general direction and control of the Georgia Emergency Management and Homeland Security Agency under § 38-3-22 and may assume direct operational control over all or part of emergency management functions in the state in the event that the disaster or emergency is beyond local control. The governor is empowered with a variety of powers and duties under this section, including preparing a comprehensive emergency management plan for the state, entering into reciprocal aid agreements with other states and the federal government, and more. The governor may also declare an emergency by proclamation under § 45-12-30 if, “because of unlawful assemblage, violence, overt threats of violence, or otherwise, a danger exists to the person or property of any citizen or citizens of the state and that the peace and tranquility of the state or of any area or political subdivision thereof is threatened.”
In a public health emergency, the governor may direct the Department of Public Health to coordinate all matters related to the state’s response to the emergency, including:
(A) Planning and executing public health emergency assessments, mitigation, preparedness response, and recovery for the state;
(B) Coordinating public health emergency responses between state and local authorities;
(C) Collaborating with appropriate federal government authorities, elected officials of other states, private organizations, or private sector companies;
(D) Coordinating recovery operations and mitigation initiatives subsequent to public health emergencies;
(E) Organizing public information activities regarding state public health emergency response operations; and
(F) Providing for special identification for public health personnel involved in a public health emergency.
Section 38-3-58 provides for the transportation and distribution of essential goods during a state of emergency. Under § 38-3-25, the governor may authorize any state department or agency to lease or lend any real or personal property of the state government to the national government or to any political subdivision of the state, whenever the governor deems it to be in the public interest and notwithstanding any inconsistent provision of law. Additionally, subject to the approval of the governor, the director of each local organization for emergency management may enter into mutual aid arrangements with other states for reciprocal emergency management aid and assistance under § 38-3-29.
Sections 38-3-60-64 provide process for a judicial emergency, meaning a state of emergency declared by the governor, public health emergency, local emergency or other serious emergency “when, as determined by an authorized judicial official, the emergency substantially endangers or infringes upon the normal functioning of the judicial system, the ability of persons to avail themselves of the judicial system, or the ability of litigants or others to have access to the courts or to meet schedules or time deadlines imposed by court order or rule, statute, or administrative rule or regulation.” During a state of emergency or disaster, the secretary of state is authorized to postpone or extend the qualifying periods for qualification of candidates for municipal, county or statewide office and to postpone the date of any primary, special primary, election or special election in the affected area, though any such postponement or extension may not exceed 45 days.
Regarding funding, under § 38-3-51(e), when available funds are insufficient, the governor “may transfer from any available fund in the state treasury such sum as may be necessary to meet the emergency or disaster; and the moneys so transferred shall be repaid to the fund from which transferred when moneys become available for that purpose by legislative appropriation or otherwise.” The governor may also access additional funding in the event of a catastrophe within the meaning of Article III, Section IX, Paragraph VI(b) of the state constitution.
Finally, both § 38-3-51(j) and § 38-3-35 provide immunity to state and political subdivisions, their agents and representatives, and any individual, partnership, association or corporation when acting in accordance with an order, rule or regulation enacted pursuant to these chapters.
In order to prepare for and manage disasters, the Illinois Emergency Management Agency Act created the Emergency Management Agency, granted the governor and other executive officers with particular emergency powers and authorized emergency management programs and the rendering of mutual aid within the state’s political subdivisions. Municipalities and counties of a certain size are to maintain an emergency services and disaster agency under Section 10, which details the responsibilities and authorities of such agencies, their employees and any volunteers. The governor may also create mobile support teams under Section 8 to assist the Illinois Emergency Management Agency and emergency services and disaster agencies.
The act defines a disaster as “an occurrence or threat of widespread or severe damage, injury or loss of life or property resulting from any natural or technological cause” and includes an epidemic in a nonexhaustive list of examples.
Under Section 5, the Illinois Emergency Management Agency coordinates the state’s overall emergency management program, including cooperating with local governments, the federal government, and any public or private agencies involved in implementing these programs and coordinating with the Department of Public Health to plan for and respond to public health emergencies. The agency is responsible for, among other things, preparing necessary executive orders and regulations for issuance by the governor; promulgating rules for political subdivision emergency operations plans and exercises, and reviewing and approving these plans and exercises; determining requirements for disaster necessities like food and clothing; establishing a register of government and private response resources and persons with training and skills in mitigation, preparedness, response, and recovery; developing agreements with medical supply and equipment companies; and awarding grants to Illinois hospitals and health care facilities.
The Emergency Management Agency is authorized to make grants to other state agencies, public universities, local governments, and statewide mutual aid organizations to enhance statewide emergency preparedness and response. The agency may also “promulgate rules to establish policies and procedures relating to telecommunications and the continuation of rapid and efficient communications in times of disaster[,]” under Section 14.
Under Section 6, the governor has “general direction and control” of the agency and is authorized to “make, amend, and rescind all lawful necessary orders, rules, and regulations to carry out the provisions of this Act within the limits of the authority conferred upon the Governor” and to “cause to be prepared a comprehensive plan and program for the emergency management of this State.” This section also charges the governor with the responsibility to institute public information and training programs or other preparatory steps “to insure the furnishing of adequately trained and equipped forces for disaster response and relief” and to negotiate reciprocal mutual aid agreements with other states for the furnishing or exchange of food, clothing, medical or other supplies, engineering and policing services, emergency housing, national and state guards, as well as services including health, medical, fire fighting, rescue, transportation, communication and construction. These reciprocal mutual aid agreements must be approved by the General Assembly or, if it is not in session, by an Interim Committee on Emergency Management.
The governor may declare a disaster by proclamation under Section 7. For up to 30 days after such proclamation, the governor’s emergency powers authorize utilizing all available resources of the state government and political subdivisions as reasonably necessary to cope with the disaster and suspending provisions of regulatory statutes prescribing procedures for state business or orders, rules, or regulations of state agencies if strict compliance with them would prevent, hinder or delay necessary action in any way. More specifically, the governor is empowered to take possession and acquire title on behalf of the state to any personal property, supplies, or equipment necessary to response and recovery; recommend and prescribe evacuation of all or part of the population from any affected or threatened area; control occupation of premises and movement into and out of disaster areas; control, restrict, and regulate the use, sale, or distribution of food, feed, fuel, clothing, and other goods, materials, and services; provide temporary emergency housing; and prohibit increases in prices of goods and services during the disaster.
If the state does take possession of property in order to protect the public peace, health, and safety in the event of a disaster, it must pay just compensation and abide by the procedures provided under § 7(4)(a)-(c). Section 7 also preserves any person or entity’s right of compensation or reimbursement due to an act occurring within the 30 days.
Under Section 16, persons competent and licensed in another state to practice a profession, trade or occupation may be permitted to practice in Illinois without being licensed or registered during the time of a disaster if persons licensed for that profession, trade or occupation are insufficient in number to cope with the disaster.
The principal executive officer of a political subdivision may declare a local disaster under Section 11, though this period may last no longer than seven days except by consent of the political subdivision’s governing board. Declaration of a local disaster activates that political subdivision’s emergency operations plan. The principal executive officer is the “chair of the county board, supervisor of a township if the township is in a county having a population of more than 2,000,000, mayor of a city or incorporated town, president of a village, or in their absence or disability, the interim successor.” The coordinator of each emergency services and disaster agency may develop mutual aid arrangements with other political subdivisions within the state for reciprocal disaster response and recovery assistance under Section 13.
Section 3 provides limitations on the Illinois Emergency Management Agency Act’s authority, noting that while communications facilities or organizations may be asked to transmit messages in connection with the disaster and public forces may be relied on in performing emergency management functions, this will not be construed to permit interference with news dissemination or to affect the jurisdiction of police, fire fighters or the armed forces. Additionally, Section 22 states: “No emergency services and disaster agency established under the authority of this Act shall be employed directly or indirectly by any person or persons for political purposes.”
In regard to funding, Section 9 declares that it is the legislative intent and policy of the state that “funds to meet disasters shall always be available.” If additional funds are needed beyond those regularly appropriated, then the governor may make funds available from the Disaster Response and Recovery Fund. If these funds are not sufficient, then the governor may request the General Assembly to enact legislation to transfer or expend funds appropriated for other purposes or may borrow funds from the federal government or other public or private sources. If the General Assembly is not in session, the governor may make these decisions until a quorum of the General Assembly can convene. The Homeland Security Emergency Preparedness Fund also provides a federal trust fund in the state treasury, which is to be held apart from all public state funds and authorized to be expended in connection with the Illinois Emergency Management Agency’s emergency management and preparedness programs.
Finally, Section 15 grants immunity to the governor; the director of the Illinois Emergency Management Agency; principal executive officers; or agents, employees, or representatives of any of them for death, injury, or property damage resulting from an emergency management response or recovery activity, unless in cases of gross negligence or willful misconduct. This does not affect a person’s right to receive benefits under the Workers’ Compensation Act, the Workers’ Occupational Diseases Act, pension laws or any acts of Congress. Section 21 prohibits civil liability for private persons and entities who, in connection with a disaster, permit designation or use of their property, act in performance of a contract with and under the direction of the state or renders assistance, or advice at the request of the state, except in the event of willful misconduct or if the person or entity caused the disaster in whole or in part and would otherwise be liable.
Chapter 3 Emergency Management and Disaster Law (§§ 10-14-3-0.5 — 10-14-3-34)
Chapter 3.5 Uniform Emergency Volunteer Health Practitioners Act (§§ 10-14-3.5-0.5 — 10-14-3.5-24)
The Louisiana Homeland Security and Emergency Assistance and Disaster Act (Louisiana Disaster Act), Title 29 Sections 721-739, empowers state and local governments to prepare, prevent and respond to natural and manmade disasters. It defines roles for state, parish, and local governments and for nongovernmental agencies and organizations. It also provides guidance with regard to shelters, evacuations and curfews, financing, assistance identification, interstate and intrastate cooperation, liability limitations, and immunity of personnel responding to disasters. Section 725 of the act also established the governor's Office of Homeland Security and Emergency Preparedness, which is managed by a director and is responsible for building Louisiana’s capability to respond to a disaster.
Section 725.6 of the Louisiana Disaster Act also created the state’s Unified Command Group. This organization is responsible for advising the governor on “the complex array of traditional and emerging threats and hazards” and is designed to facilitate a unified and coordinated approach to emergency incident management.
Section 729 recreates this structure at the parish level. Specifically, parish offices of homeland security and emergency preparedness are required to create homeland security and emergency plans. To develop these plans, a parish is authorized to employ or otherwise secure the services of professional and technical personnel capable of providing expert assistance. These personnel can consult with parish agencies on a regularly scheduled basis to take inventory of emergency supplies and update the emergency plans. When a parish president believes it is necessary during an emergency, the president can issue evacuation orders for part or all of the parish or institute curfews under § 730.3.
Under § 724 of the Louisiana Disaster Act, the governor is “responsible for meeting the dangers to the state and people presented by emergencies or disasters.” This section also allows the governor to issue or rescind executive orders, proclamations and regulations that have the force of law. To activate this section, the governor must first declare a disaster or emergency.
The governor can declare a state of emergency by executive order or proclamation. A state of disaster or emergency can continue until the governor finds that the threat of danger has passed, the disaster or emergency has been dealt with, or a majority of the surviving members of the legislature vote to end the emergency. No state of disaster or emergency may continue for longer than 30 days unless renewed by the governor. A state of emergency allows the governor to:
(1) Suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business, or the orders, rules, or regulations of any state agency, if strict compliance with the provisions of any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency.
(2) Utilize all available resources of the state government and of each political subdivision of the state as reasonably necessary to cope with the disaster or emergency.
(3) Transfer the direction, personnel, or functions of state departments and agencies or units thereof for the purpose of performing or facilitating emergency services.
(4) Subject to any applicable requirements for compensation, commandeer or utilize any private property if he finds this necessary to cope with the disaster or emergency.
(5) Prescribe routes, modes of transportation, and destination in connection with evacuation.
(6) Suspend or limit the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles.
(7) Make provision for the availability and use of temporary emergency housing.
If an emergency is declared and the governor issues additional regulations pursuant to the emergency, violating these regulations is punishable by a maximum fine of $500,000 and confinement in the parish jail for up to six months. Additionally, the governor's emergency powers do not allow him to fix penalties for violating his orders.
The Maryland Emergency Management Agency Act is located at Title 14, Subtitle 1 of the Code of Maryland, Article - Public Safety. Under § 14-106, the governor of Maryland has emergency management powers including control and responsibility for the Maryland Emergency Management Agency, procuring supplies and equipment, instituting training programs, authorizing studies and surveys of industries and resources, and appointing directors of local organizations for emergency management. The governor is also empowered to issue orders, rules and regulations necessary to prepare and revise a plan and program for emergency management operations of the state, integrate the plan and program of Maryland with the emergency management operations plans of the federal government and other states, and coordinate the preparation of plans and programs for emergency management operations by the political subdivisions. Finally, in addition to these emergency preventative measures, the governor shall also “consider, on a continuing basis, steps that could be taken to prevent or reduce the harmful consequences of potential emergencies.”
The governor of Maryland may declare a state of emergency by either an executive order or proclamation under § 14-107. The state of emergency may not continue longer than 30 days without renewal. It can be terminated by order or proclamation by the governor or by joint resolution by the General Assembly, followed by an order or proclamation by the governor. An order or proclamation declaring or terminating a state of emergency must include the nature of the emergency, the area threatened, and the conditions that have brought about the state of emergency or that make possible its termination; and the order or proclamation must be disseminated promptly to publicize its contents.
A declaration of a state of emergency activates the emergency response and recovery aspects of the state and local emergency plans. During a state of emergency, the governor is empowered to take the following additional actions if necessary to protect the public health, welfare or safety:
(i) suspend the effect of any statute or rule or regulation of an agency of the State or a political subdivision;
(ii) direct and compel the evacuation of all or part of the population from a stricken or threatened area in the State;
(iii) set evacuation routes and the modes of transportation to be used during an emergency;
(iv) direct the control of ingress to and egress from an emergency area, the movement of individuals in the area, and the occupancy of premises in the area;
(v) authorize the use of private property, in which event the owner of the property shall be compensated for its use and for any damage to the property;
(vi) provide for temporary housing; and
(vii) authorize the clearance and removal of debris and wreckage.
The governor is authorized by § 14-108 to provide assistance to another state that has declared a state of emergency, including authorizing the use of personnel, equipment, supplies, or materials, or suspending any statute, rule, or regulation if necessary to aid the other state with its emergency management functions.
In the event of a catastrophic health emergency, the governor may issue a proclamation under § 14-3A-02 indicating the nature of the emergency, the areas threatened or affected, and the conditions that led to the emergency or made possible the termination of the emergency. A catastrophic health emergency means “a situation in which extensive loss of life or serious disability is threatened imminently because of exposure to a deadly agent,” and a deadly agent includes a “viral agent, biological toxin, or other biological agent capable of causing extensive loss of life or serious disability.” The governor is to rescind the proclamation whenever he determines the catastrophic health emergency no longer exists, and such a proclamation will expire after 30 days unless the governor renews it.
Having declared a catastrophic health emergency, the governor may, under § 14-3A-03, order the secretary of health or another designated official to immediately seize anything needed for medical response; to work with health care providers to designate and access a facility needed for the response; and to control, restrict, or regulate the use, sale, dispensing, distribution, or transportation of anything necessary for medical response. If medically necessary, the governor may also order the secretary or other designated official to require individuals to submit to medical examination, testing, vaccination, or treatment or to remain in places of isolation or quarantine. The governor may also “order individuals to remain indoors or refrain from congregating” if “necessary and reasonable to save lives or prevent exposure to a deadly agent” and may order any health care provider to participate in disease surveillance, treatment, and suppression efforts, or comply with any other directives.
Each political subdivision is to have a local organization for emergency management under §14-109; each county is to maintain an emergency preparedness plan for hazardous or radiological materials under § 14-110; and all human service facilities, such as nursing homes, assisted living facilities, hospitals or other state-run institutions are also to develop an emergency plan under § 14.110.1. These plans are to be made available to the local emergency management organization.
The principal executive officer of a political subdivision is authorized to declare a local state of emergency under § 14-111, activating the response and recovery aspects of any applicable local state emergency plan and authorizing the provision of aid and assistance under that plan. A local state of emergency may not continue for longer than 30 days.
Regarding funding, § 14-112 instructs that expenditures related to an emergency “must first be made using money regularly appropriated to State and local agencies”; however, if the governor finds “that regularly appropriated money is inadequate to cope with an emergency, the Board of Public Works may make contingency money available in accordance with the State budget.” The state may also accept any federal money and any aid from the federal Disaster Relief Act of 1974 and any other federal law providing grants and public assistance.
Each emergency management agency and its officers and all law enforcement officers of the state and its political subdivisions are to execute and enforce the governor’s orders, rules and regulations under § 14-113. Any person who violates any of these orders, rules or regulations is guilty of a misdemeanor under § 14-114.
Title 14, Subtitle 2 deals with civil relief during emergency periods including temporarily suspending enforcement of civil liabilities, including monetary damages or other court enforced judgments, against persons in emergency management service and persons suffering injury or damage. It also provides for temporary suspension or stays of legal proceedings and transactions that may prejudice these persons during the declared emergency period, including eviction proceedings.
Chapter 639 of the Acts of 1950 governs general emergency management preparedness and response in Massachusetts. Section 2 of the act created the Massachusetts Emergency Management Agency, and Section 4 provides that the governor directs and controls it. Section 5 permits the governor to issue a proclamation or proclamations setting forth a state of emergency. Subsection (a) allows the governor to utilize all state agencies and members of all departments and divisions “to protect the lives and property of [Massachusetts’s] citizens and to enforce the law.”
Subsection (b) of Section 5 authorizes takings: The governor may possess, among other things, land, buildings, machinery, or equipment “in the event of disaster or shortage making such action necessary for the protection of the public.” There are certain procedural requirements if the governor seizes real estate or personal property. Additionally, the governor, with the approval of the public health council, will award “reasonable compensation” to owners of the property taken pursuant to this authority.
Section 6 gives the governor the power and authority to cooperate with the federal government and governors in other states, as well as with the military and naval forces of each. The governor may also “take any measures which he may deem proper to carry into effect any request of the President of the United States for action looking to the national defense or to the public safety.”
Section 7 then specifies the additional powers the governor has upon a declaration of a state of emergency. It starts with a very general provision that the governor “shall have and may exercise any and all authority over persons and property necessary or expedient for meeting said state of emergency, which the general court in the exercise of its constitutional authority may confer upon him as supreme executive magistrate of the commonwealth and commander-in-chief of the military forces thereof.” Then the statute lists specific powers, with the express statement that these do not limit the “generality of the foregoing” provision. The governor has authority “relative to any or all of the following”:
(a) Health or safety of inmates of all institutions.
(b) Maintenance, extension or interconnection of services of public utility or public-service companies, including public utility services owned or operated by the commonwealth or any political subdivision thereof.
(c) Policing, protection or preservation of all property, public or private, by the owner or person in control thereof, or otherwise.
(d) Manufacture, sale, possession, use or ownership of (1) fireworks or explosives, or articles in simulation thereof; (2) means or devices of communication other than those exclusively regulated by federal authorities; (3) articles or objects (including birds and animals) capable of use ... for the destruction of life or property.
(e) Transportation or travel on Sundays or week-days by aircraft, watercraft, vehicle or otherwise . ...
(f) Labor, business or work on Sundays or legal holidays.
(g) Assemblages, parades or pedestrian travel, in order to protect the physical safety of persons or property.
(h) Public records and the inspection thereof.
(i) Regulation of the business of insurance and protection of the interests of the holders of insurance policies and contracts and of beneficiaries thereunder and of the interest of the public in connection therewith.
(j) Vocational or other educational facilities supported in whole or in part by public funds, in order to extend the benefits or availability thereof.
(k) The suspension of the operation of any statute, rule or regulation which affects the employment of persons within the commonwealth when, at such times as such suspension becomes necessary in the opinion of the governor to remove any interference, delay or obstruction in connection with the production, processing or transportation of materials ... which are necessary because of the existence of a state of emergency.
(l) Regulation of the manner and method of purchasing or contracting for supplies, equipment or other property or personal or other services, and of contracting for or carrying out public works. ...
(m) Receipt, handling or allocation of money, supplies, equipment or material granted, loaned or allocated by the federal government to the commonwealth or any of its agencies or political subdivisions.
(n) Protection of depositors in banks, and maintenance of the banking structure of the commonwealth.
(o) Variance of the terms and conditions of licenses, permits or certificates of registration issued by the commonwealth or any of its agencies or political subdivisions.
(p) Regulating the sale of articles of food and household articles.
(q) Modification or variation in the classifications established [in sections governing state employment].
For example, Gov. Charlie Baker cited subsections (c), (g), and (p) in his March 23 executive order regarding essential services, closing of certain businesses and prohibiting gatherings of more than 10 people.
Section 8 provides that anyone who violates a governor’s executive order or general regulation issued pursuant to the act is subject to a prison term of up to a year, a fine of up to $500, or both, if there is no penalty already provided through another law.
Section 8A then states that any other law or regulation that is inconsistent with an order or regulation issued under the act will be inoperative while the order or regulation that was issued pursuant to the act is in effect.
Mass. Gen. Laws ch. 17, § 2A provides that when the governor declares a public health emergency, the health commissioner may “take such action and incur such liabilities as he may deem necessary to assure the maintenance of public health and the prevention of disease,” though approval from the governor and public health council is required. If the public health council approves, the commissioner may establish emergency procedures “to insure the continuation of essential public health services and the enforcement of the same.” When the governor terminates a public health emergency, the powers granted to and exercised by the commissioner under this section are also terminated.
Under Mass. Gen. Laws ch. 111, § 30, in emergencies where it is inconvenient for boards of health to assemble, they may appoint agents or directors to act for them. Any such agent or direct will have all of the authority of the appointing board, but the agent must report any action to the board for its approval within two days and is directly responsible to the board and under its direction and control.
Finally, Mass. Gen. Laws ch. 111, § 5A permits the department of public health to “purchase, produce and distribute” any “antitoxin, serum, vaccine or other analogous product” when the public health commissioner determines that inoculation and administration of such a product is “essential in the interest of the public health” and there is an emergency because of a shortage of the product. The department may also “prepare and distribute without as well as within the commonwealth, and sell or give away, in its discretion, antitoxins, serums, vaccines, viruses and analogous products applicable to the prevention or cure of diseases of man, for the use of the armed forces of the United States or in civilian defense work,” in the case of a presidential declaration of a national emergency. Section 5A1/2 establishes an Emergency Stockpile Trust Fund to “effectively facilitate emergency management and pandemic preparedness in accordance with section 5A.”
Michigan has two laws providing for a declaration of emergency. The Emergency Management Act of 1976 lets the governor declare states of disaster or emergency and grants the governor, and other officials, specific emergency authorities. The Emergency Powers of the Governor Act of 1945 also empowers the governor to declare a state of emergency in the event of “great public crisis, disaster, rioting, catastrophe, or similar public emergency.” This law lets the governor “promulgate reasonable orders, rules, and regulations … necessary to protect life and property or to bring the emergency … under control.”
On March 10, Gov. Gretchen Whitmer invoked both of these laws to declare a state of emergency. In her declaration, the governor also invoked Michigan Constitution Article V, Section 1, which vests the state’s “executive power” in the governor—except as limited by provisions of the state constitution that provide for state agency powers and legislative districting.
The governor may also declare a state of emergency under § 30.403(4) by executive order or proclamation. According to § 30.402(h), an emergency is an “occasion” where “the governor determines state assistance is needed to supplement local efforts and capabilities to save lives, protect property and the public health and safety, or to lessen or avert the threat of a catastrophe.” Under this section, she may also separately declare a state of disaster. Section 30.402(e) defines a disaster as an “occurrence or threat of widespread or severe damage, injury, or loss of life or property,” coming from either a “natural” or “human-made” source.
A disaster and emergency declaration each grant similar emergency powers to the governor, which are described below; they differ in triggering different state plans and preparations for emergency response. Both types of declaration, under § 30.403, must terminate after 28 days unless both houses of the state legislature approve the governor’s request to extend it by a specific number of days. The governor may implement powers under either declaration by “executive orders, proclamations, and directives having the force and effect of law.”
Section 30.405 grants general powers to the governor. The governor by this section may “suspend” any procedural “regulatory order, state, or rule” that “prevent would prevent, hinder, or delay necessary action.” She may not, however, suspend criminal processes or procedures. Under § 30.405(b), she may use the “available resources” of the state, political subdivisions, and federal government as “reasonably necessary” to cope with the emergency. Under § 30.405(c), she may transfer the personnel or function of state executive agencies to facilitate emergency response. And under § 30.405(j), the governor has the power to direct “all other actions which are necessary and appropriate under the circumstances” and not otherwise enumerated.
The governor’s financial and budgetary authorities include, under Section § 30.404(2), seeking and accepting financial and other assistance from the federal government. By § 30.419, she may also in “extraordinary circumstances”—and if federal assistance is not available—authorize expenditures from the “disaster and emergency contingency fund” to assist counties and municipalities.
The governor has other specific authorities. Under § 30.405(d), she may “commandeer or utilize” private property to cope with the emergency, in which case she must compensate property owners as the legislature has deemed appropriate. Under § 30.405(e), the governor may compel evacuation of an afflicted or threatened area “if necessary for the preservation of life or other mitigation, response, or recovery activities” and, under subsections (f) and (g), prescribe or restrict routes of travel and control entry to and exit from evacuated areas. Under § 30.405(i), the governor may provide for the “availability and use” of temporary housing. And the governor may under § 30.405(i) suspend or limit the “sale, dispensing, or transportation of alcoholic beverages, explosives, and combustibles.”
An emergency declaration also empowers the director of the state police, or someone whom he designates. Under § 30.407, the director may administer state and federal relief funds, direct state disaster relief forces, assign “general missions” to the national guard or state defense force assisting relief operations, handle requests for assistance from county and municipal governments, and take “other appropriate actions within the general authority of the director.” The director may also relieve those supplying “voluntary or private” assistance of any liability, other than gross negligence, in performing assistance. Further, at the “specific direction” of the governor, the director shall “assume complete command of all disaster relief, mitigation, and recovery forces, except the national guard or state defense force,” if doing so is “absolutely necessary.”
In the event of a local disaster or emergency, the executives of counties or municipalities may, by § 30.412 request the governor to declare a state of disaster or emergency in their particular subdivision. If the request is granted, the executives may “make, amend, and rescind ordinances or rules necessary for emergency management” or “supplementary” to statewide emergency orders and directives. Any such rule or ordinance promulgated by an executive shall be “temporary” and lose effect after termination of the statewide state of disaster or emergency declaration.
Counties and municipalities in Michigan also appoint emergency management coordinators, who may under § 3410 declare a local state of emergency in similar conditions to those activating a statewide declaration. After making such a declaration, a coordinator may “issue directives as to travel restrictions on county or local roads.” The local state emergency will not remain in effect for more than seven days without the consent of the county’s or municipality’s governing body.
The Emergency Health Powers Act, codified at N.J. Stat. Ann. § 26:13-1 et seq., governs declarations of public health emergencies and the powers and duties activated when such an emergency exists. Section 26:13-3 allows the governor to declare a public health emergency in consultation with the health commissioner and the State Office of Emergency Management director. The emergency order must specify the nature of the emergency; the geographic area that will be subject to the order; the conditions that brought about the emergency; and the expected duration of the state emergency, if it is less than 30 days. A public health emergency is automatically terminated after 30 days unless the governor renews it under the described standards.
The health commissioner is responsible for coordinating “all matters pertaining to the public health response to a public health emergency.” The commissioner also has primary responsibility for emergency response, coordination, collaboration with federal and state authorities, and organizing public information activities.
All of these actions must be taken in coordination with the State Office of Emergency Management, which provides assistance to the commissioner, and must be “executed in accordance with the State Emergency Operations Plan.” The commissioner must also promptly notify local officials and health care facilities that will be affected by the emergency of its nature and extent to “the fullest extent practicable.”
The commissioner may “take reasonable steps to investigate any incident or imminent threat of any human disease or health condition” to detect the “occurrence or imminent threat of an occurrence of a public health emergency.” The commissioner may issue and enforce orders relating to such an investigation, which may include requiring information from health care providers or other individuals affected by or having information relating to the threat and “inspections of buildings and conveyances and their contents, laboratory analysis of samples collected during the course of such inspection.” If the commissioner has “reasonable grounds to believe a public health emergency exists,” the commissioner may require a physical examination or laboratory examination of specimens from an individual if the individual is suspected of having a disease that necessitates an investigation, “except where such action would be reasonably likely to lead to serious harm to the affected person.”
If the commissioner has “reasonable grounds to believe a public health emergency exists,” the commissioner must do several things: “ascertain the existence of cases of an illness or health condition that may be potential causes of a public health emergency; investigate all such cases for sources of infection and ensure that they are subject to proper control measures; and define the distribution of the illness or health condition.” The statute then specifies how the commissioner will identify exposed individuals.
The commissioner also has extra powers over facilities and property during a state of public health emergency. For facilities, the commissioner may close, evacuate or decontaminate “any facility of which there is reasonable cause to believe that it may endanger the public health.” There are certain procedural requirements the commissioner has to follow, and a health care facility subject to a closure order may request a hearing in superior court to contest it. For property, the commissioner may decontaminate or destroy property if there is “reasonable cause to believe” that any of its material “may endanger the public health.” This is subject to the “payment of reasonable costs.” An individual making a claim for reimbursement may file a petition for an award with the State Public Health Emergency Claim Reimbursement Board after the public health emergency has been terminated.
The next statutory provision delineates powers that the commissioner can exercise with respect to “health care and other facilities, property, roads, or public areas.” The commissioner may procure, through condemnation or other means, “construct, lease, transport, store, maintain, renovate or distribute property and facilities as may be reasonable and necessary to respond to the public health emergency, with the right to take immediate possession thereof.” Such property and facilities may include “communication devices, carriers, real estate, food and clothing.” The commissioner may also accept and manage goods and services that are donated to respond to the emergency.
For health care facilities, the commissioner may require a facility “to provide services or the use of its facility if such services or use are reasonable and necessary to respond to the public health emergency, as a condition of licensure, authorization or the ability to continue doing business in the State as a health care facility.” During the state of emergency, the commissioner may transfer the management and supervision to the commissioner, after consulting the management of the facility. If the commissioner uses this transfer authority, the commissioner must use the facility’s existing management. Additionally, if such a transfer occurs, the facility will not be liable for any civil damages that result from the commissioner’s “acts or omissions in providing medical care or treatment or any other services related to the public health emergency.” Both this and the authority with respect to property and facilities are subject to payment of reasonable costs provisions.
During the emergency, the commissioner must “confer with the Commissioner of Banking and Insurance to request that the Department of Banking and Insurance waive regulations requiring compliance by a health care provider or health care facility with a managed care plan's administrative protocols.”
The commissioner may “inspect, control, restrict, and regulate,” through the use of rationing, quotas, shipments prohibitions, allocation or other means, “the use, sale, dispensing, distribution or transportation of food, clothing and other commodities, as may be reasonable and necessary to respond to the public health emergency.” The commissioner may also “identify areas that are or may be dangerous to the public health” and recommend restriction of movement within those areas to the governor and attorney general, if this is “reasonable and necessary to respond to the public health emergency.”
With respect to medical supplies, during a public health emergency, the commissioner may “purchase, obtain, store, distribute or take for priority redistribution” any medical supplies that are “reasonable and necessary to respond to the public health emergency,” and has the right to immediately possess them. If the emergency results in a shortage or threatened shortage of such a product, “the commissioner may issue and enforce orders to control, restrict and regulate,” through the use of rationing, quotas, shipments prohibitions, allocation, or other means, “the use, sale, dispensing, distribution or transportation of the relevant product necessary to protect the public health, safety and welfare of the people of the State.” In making decisions relating to supply and distribution, the commissioner can preference “health care providers, disaster response personnel, mortuary staff and such other persons as the commissioner deems appropriate in order to respond to the public health emergency.” The commissioner also has additional powers with respect to the safe disposal of infectious waste.
The act gives the commissioner the power to require vaccination against an infectious disease, though a vaccine must be administered after obtaining the informed consent of an individual. The commissioner may also require individuals who have been infected to be treated.
The commissioner may also require health care providers within the state to “assist in the performance of vaccination, treatment, examination or testing of any individual.” With respect to out-of-state emergency health care providers, the commissioner may “appoint and prescribe” any duties for them “as may be reasonable and necessary to respond to the public health emergency.” The commissioner may appoint such out-of-state providers during the state of emergency, for as long as the commissioner “deems appropriate.” The commissioner may additionally waive state professional licensing requirements for out-of-state providers. In-state and out-of-state providers that are required to assist pursuant to these authorities are not liable for civil damages from their “acts or omissions in providing medical care or treatment related to the public health emergency,” or “public health preparedness activities,” if they are conducted “in good faith and in accordance with the provisions of this act.”
The commissioner may also authorize the state medical examiner to “appoint and prescribe the duties of county medical examiners, regional medical examiners, designated forensic pathologists, their assistants, out-of-State medical examiners and others as may be required for the proper performance of the duties of the office.”
One of the final provisions of the section notes that the act does not “explicitly preempt other laws or regulations” that give more power to the governor or commissioner, as long as “such laws or regulations are consistent and do not otherwise restrict or interfere with the operation or enforcement of the provisions of this act.”
In his March 9 declaration of a public health emergency and state of emergency, Gov. Phil Murphy cited two other statutes conferring emergency authorities. N.J. Stat. Ann. § 38A:3-6.1 provides that the governor may direct the adjutant general to order members of the New Jersey National Guard to active duty, where the general judges that the members “are necessary to provide aid to localities in circumstances which threaten or are a danger to the public health, safety or welfare.” The general may also authorize the use of any “vehicles, equipment, communications or supplies as may be necessary to support the members.” N.J. Stat. Ann. § 38A:2-4 further provides that if there is an “imminent danger to public safety,” the governor may order any or all of the militia to active duty “that he may deem necessary.” The governor “may maintain such forces on such active duty until the exigencies shall have passed.”
On March 3, the New York Legislature passed a bill that “[p]ermits the governor to issue by executive order any directive necessary to respond to a state disaster emergency.” This bill built on Article 2-B Section 29-A, a prior New York law that gives the governor this authority, but expanded the definition of a “disaster” to mean the “occurrence or imminent, impending or urgent threat of wide spread or severe damage, injury, or loss of life or property” and specifically added “disease outbreak” to the list of things that could constitute such an emergency. Broadly, Article 2B lays out a comprehensive set of emergency authorities for the governor, municipal and county executives, and the disaster preparedness commission.
Section 28 of Article 2-B allows the governor to declare a disaster emergency by executive order if he finds that a disaster has occurred or may be imminent for which local governments are unable to respond adequately.
Section 29-A subsection 1 provides that:
[s]ubject to the state constitution, the federal constitution and federal statutes and regulations, the governor may by executive order temporarily suspend any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster or if necessary to assist or aid in coping with such disaster.
Under subsection 2, any action the governor takes using his emergency power must not last for longer than 30 days. The governor can renew this emergency action for an additional 30 day period after reconsidering all of the relevant facts and circumstances. Additionally, any suspension or directive must be reasonably necessary to aid the disaster effort. Finally, subsection 4 allows the legislature to terminate executive orders issued under this section at any time.
Section 29 in this same article also provides that the governor can use his emergency powers to direct any and all agencies of the state government to provide assistance under the coordination of the disaster preparedness commission. This assistance can include:
(1) giving or lending political subdivisions equipment, supplies, facilities, services of state personnel, and other resources, other than the extension of credit;
(2) distributing medicine, medical supplies, food and other consumable supplies through any public or private agency;
(3) performing on public or private lands temporary emergency work essential for the protection of public health and safety; and
(4) making such other use of their facilities, equipment, supplies and personnel as may be necessary to assist in coping with the disaster or any emergency resulting therefrom.
The disaster preparedness commission, mentioned above, was created by Section 21 of this Article and is responsible for:
(1) studying all aspects of man-made or natural disaster prevention, response and recovery;
(2) requesting and obtaining from any state or local agency any information necessary to prepare and revise a state comprehensive emergency management plan;
(3) preparing and distributing an inventory of programs directly relevant to prevention, minimization of damage and readiness; and
(4) directing state disaster operations and coordinating state disaster operations with local disaster operations following the declaration of a state disaster emergency.
During a disaster or emergency, Section 21 subsection f also gives this commission the responsibility for integrating and coordinating efforts among the various federal, state, municipal and private agencies. This subsection also gives the commission, upon a request from a municipality and with the approval of the governor, the ability to temporarily assume direction of municipal local disaster operations.
Section 24 of Article 2-B gives the chief executive of a county or designated municipality the power to proclaim a local state of emergency within any part or all of the territorial limits of his or her area of authority. This proclamation shall remain in effect for a period not to exceed 30 days or until rescinded by the chief executive. Like the governor’s power, the chief executive may issue additional proclamations to extend the state of emergency for additional periods not to exceed 30 days. Following such proclamation and during the continuance of such local state of emergency, the chief executive may promulgate local emergency orders to protect life and property or to bring the emergency situation under control. These powers include the ability:
(1) to establish a curfew;
(2) to designate specific zones within which the occupancy and use of buildings may be prohibited or regulated;
(3) to regulate and close places of amusement and assembly;
(4) to suspend or limit the sale, dispensing, use or transportation of alcoholic beverages, firearms, explosives, and flammable materials and liquids;
(5) to establish or designate emergency shelters, emergency medical shelters, and in consultation with the state commissioner of health, community-based care centers; and
(6) to suspend within any part or all of its territorial limits of any of its local laws, ordinances or regulations, which may prevent, hinder, or delay necessary action in coping with a disaster or recovery therefrom whenever (a) a request has been made pursuant to subdivision seven of this section, or (b) whenever the governor has declared a state disaster emergency pursuant to section twenty-eight of this article. This suspension must comply with federal and state constitutional, statutory and regulatory limitations.
Section 25 of Article 2-B also allows the chief executive of a county or city (with a population of 1 million or more) to use “any and all facilities, equipment, supplies, personnel and other resources of his/her political subdivision in such manner as may be necessary or appropriate to cope with the disaster or any emergency resulting therefrom.” This same section allows “a chief executive to request and accept assistance” from other counties.
Pennsylvania Consolidated Statutes (Pa. C.S.) § 7103(c) lets the governor declare, by proclamation or executive order, a disaster emergency upon finding that a disaster has occurred or is imminent. Gov. Tom Wolf on March 6 declared a disaster emergency pursuant to this section (citing the emergency provision’s title, § 7101).
Section 7102 defines a “disaster” as a “man-made disaster, natural disaster or war-caused disaster.” It also specifies that a disaster emergency is a circumstance that has the following three characteristics:
- It affects “seriously the safety, health or welfare of a substantial number of citizens,” or forestalls use of “essential public facilities”;
- It is severe enough to “render essential” state supplementation of local efforts to mitigate the danger; and
- It is caused by “forces beyond the control of man, by reason of civil disorder, riot or disturbance, or by factors not foreseen and not known to exist when appropriation bills were enacted.”
A disaster state of emergency may last indefinitely, but the governor must renew it every 90 days, and the Pennsylvania General Assembly may vote to terminate it at any time.
Invoking a state of disaster emergency provides the governor general authorities related to financing. Under § 7305, the governor may, if state funds are insufficient, accept federal grants to “meet the disaster-related necessary expenses or serious needs” of citizens, and to disburse those grants for this purpose. Under § 7305(1), the governor may also participate with the federal government in funding certain “hazard mitigation measures,” or steps to reduce the risk of future damage or suffering in affected areas. Section 7304 lets the governor apply for federal loans on behalf of any political subdivision that has lost “substantial” revenue from disaster and has demonstrated a need for financial assistance for government functions. He may give state backing for applications of loans up to 25 percent of the region’s annual operating budget.
The governor and other authorities enjoy more specific emergency authorities related to temporary housing and clearing debris. Section 7302(a) lets the governor purchase or lease temporary housing units from the federal government. It also allows the governor to financially support political subdivisions in equipping relief housing by “passing through” to them agency funds, lending to them, or backstopping their credit as co-partner, as well as empowering him to suspend or modify regulations or requirements if “essential” to provide temporary housing. Section 7302(b) also permits political subdivisions to acquire, temporarily or permanently, the sites for temporary housing and equip them by entering into “whatever arrangements necessary.”
Under § 7303, state agencies or instrumentalities may clear debris from public or private water and land that threatens any property or public health or safety, as well as disbursing federally received funds to political subdivisions to do so. Employees and operatives of the governor have authorization to enter private land or waters and perform “any tasks necessary” for this purpose.
A disaster emergency declaration gives further powers to authorities other than the governor. Under § 7501(d), authorities in political subdivisions may—following the governor’s declaration of a disaster emergency—exercise powers “without regard to time-consuming procedures and formalities prescribed by law,” excepting constitutional requirements, in areas including:
- Performance of public work.
- Entering into contracts.
- Incurring obligations.
- Employing temporary workers.
- Renting equipment and buying supplies.
- Levying taxes and appropriation and expenditure of funds.
- Maintaining a conventional quorum of the governing body in order to conduct business.
Officials of political subdivisions have authority under § 7705 to “clear roadways” as “necessary for the health, safety and welfare of residents.” Similarly, the governing power of the political subdivision as a whole may “lease or hire” equipment or personnel to restore water systems owned or operated by that system, if they are damaged as a “direct result” of the emergency.
Section 7308 suspends certain tax requirements for out-of-state businesses and employees.
Section 7504 further provides that the governing authorities of the lowest political subdivisions affected by emergency are responsible for administering the response, while higher-level governing bodies coordinate the responses of multiple affected political subdivisions within their area of authority.
Additionally, to supplement the foregoing disaster emergency statutes, the Pennsylvania legislature on April 20 enacted Ch. 57 of Pa. G.S. Title 35, entitled COVID-19 Disaster Emergency. These statutes contain a series of measures that remain in place for the duration of the disaster emergency issued by the governor on March 6 (and any subsequent renewals).
There are five operative sets of provisions. First, § 5713 permits taxing districts to collect certain property taxes at lower rates and waive various fees. Second, § 5721 delays certain business tax obligations and provides tax credits to businesses for whom the second year of a two-year arrangement was affected by COVID-19. Third, § 5721(1) gives school entities flexibility to renegotiate services contracts. Fourth, § 5731 provides for notaries to perform notarial functions remotely under certain conditions. Finally, § 5741 waives some procedural requirements for local government entities to deliberate and conduct business.
On March 12, Tennessee Gov. Bill Lee declared a statewide emergency activating powers he has pursuant to Title 58 Chapter 2 § 6-21-703. Under this law the governor can declare a state of emergency or a disaster declaration in one of two ways: by executive order or proclamation; or by the activation of the Tennessee Emergency Management Plan. A disaster emergency can be declared if the governor finds an emergency has occurred or is imminent. The state of emergency shall continue until the governor finds that the threat or danger has been dealt with to the extent that the emergency conditions no longer exist and the governor terminates the state of emergency by executive order. However, no state of emergency may continue for longer than sixty days unless renewed by the governor.
Under this section a declaration of a state of emergency:
Activates the emergency mitigation, response, and recovery aspects of the state, local and interjurisdictional emergency management plans;
Authorizes the deployment and use of any forces to which an emergency plan or plans apply;
Identifies whether the state of emergency is due to a minor, major or catastrophic disaster; and,
Makes the governor the commander in chief of the Tennessee national guard and of all other forces available for emergency duty.
Additionally, under this same section a state of emergency allows the governor to “[s]uspend the provisions of any law, order, rule or regulation prescribing the procedures for conduct of state business or the orders or rules or regulations of any state agency, if strict compliance with the provisions of any such law, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency.” This section also gives the governor the power to:
Use all available resources of the state government and of each political subdivision of the state, as reasonably necessary to cope with the emergency;
Subject to any applicable requirements for compensation, commandeer or utilize any private property if the governor finds this necessary to cope with the emergency;
Control ingress and egress to and from an emergency area; and,
Take effective measures for limiting or suspending lighting devices and appliances, gas and water mains, electric power distribution, and all other utility services in the general public interest;
§58-2-110 in the same title and chapter also gives counties and municipalities in Tennessee their own set of emergency powers. Under this section each county and municipality emergency management agency and director are responsible for:
i. Appropriate and expend funds; make contracts; obtain and distribute equipment, materials, and supplies for emergency management purposes; provide for the health and safety of persons and property, including emergency assistance to the victims of any emergency; and direct and coordinate the development of emergency management plans and programs in accordance with the policies and plans set by the federal and state emergency management agencies;
ii. Appoint, employ, remove, or provide, with or without compensation, coordinators, rescue teams, fire and police personnel, and other emergency management workers;
iii. Establish, as necessary, a primary and one or more secondary emergency operating centers to provide continuity of government and direction and control of emergency operations; and,
iv. Assign and make available for duty the offices and agencies of the political subdivision, including the employees, property, or equipment thereof relating to firefighting, engineering, rescue, health, medical and related services, police, transportation, construction, and similar items or services for emergency operation purposes, as the primary emergency management forces of the political subdivision for employment within or outside the political limits of the subdivision[.]
On March 13, Texas Gov. Greg Abbott declared a statewide disaster/emergency, activating powers pursuant to the Texas Disaster Act of 1975, codified in Title 4, Chapter 418. Section 418.014 of this act gives the governor the power to proclaim or declare a state of emergency if a disaster has occurred or is imminent. A state of emergency concludes when the disaster has been deemed to have passed, if the legislature decides to terminate it, or if the declaration is not renewed by the governor after thirty days. Section 418.015 provides that:
[d]uring a state of disaster and the following recovery period, the governor is the commander in chief of state agencies, boards, and commissions having emergency responsibilities. To the greatest extent possible, the governor shall delegate or assign command authority by prior arrangement embodied in appropriate executive orders or plans, but this chapter does not restrict the governor's authority to do so by orders issued at the time of the disaster.
Section 418.0155 also allows the governor's office to suspend laws during a state of emergency but also requires that the governor have “a comprehensive list of regulatory statutes and rules that may require suspension during a disaster.” Section 418.016 adds that “[t]he governor may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.” Section 418.017 also allows the governor to “use all available resources of state government and of political subdivisions that are reasonably necessary to cope with a disaster.” This includes the power to temporarily reassign resources, personnel, or functions of state executive departments and agencies or their units for the purpose of performing or facilitating emergency services, and the power to commandeer or use any private property if it is necessary to cope with a disaster and the owners are appropriately compensated.
Sections 418.018 and 418.019 allow the governor (during an emergency) to evacuate areas that he deems to be dangerous to the population and to suspend the sale or distribution of alcohol and firearms.
The Texas Disaster Act also created the Texas Division of Emergency Management pursuant to § 418.041. Under § 418.042, the Division of Emergency Management is responsible for preparing and keeping a comprehensive state emergency management plan. Additionally, § 418.043 tasks the division with:
- Determining requirements of the state and its political subdivisions for food, clothing, medicines, material, equipment and other necessities in event of a disaster;
- Adopting standards and requirements for local and interjurisdictional emergency management plans;
- Periodically reviewing local and interjurisdictional emergency management plans; and
- Coordinating the deployment of mobile support units.
The Commonwealth of Virginia Emergency Services and Disaster Law of 2000, codified at Virginia Code Title 44, Chapter 3.2, governs emergency response. Section 44-146.17 enumerates the powers and duties of the governor. The governor is the Director of Emergency Management, and must “take such action from time to time as is necessary for the adequate promotion and coordination of state and local emergency services activities relating to the safety and welfare of the Commonwealth in time of disasters.”
The statute includes ten subsections enumerating additional gubernatorial powers. First, the governor may proclaim rules and regulations and issue orders as are, “in his judgment,” “necessary to accomplish the purposes of this chapter including, but not limited to such measures as are in his judgment required to control, restrict, allocate or regulate the use, sale, production and distribution of food, fuel, clothing and other commodities, materials, goods, services and resources under any state or federal emergency services programs.” The governor may also “adopt and implement the Commonwealth of Virginia Emergency Operations Plan.” This plan describes emergency operations and a framework for more detailed emergency plans for Virginia “in response to any type of disaster or large-scale emergency.”
The governor may also order evacuation if it is “deemed necessary for the preservation of life,” and the governor may “implement emergency mitigation, preparedness, response or recovery actions; prescribe routes, modes of transportation and destination in connection with evacuation; and control ingress and egress at an emergency area, including the movement of persons within the area and the occupancy of premises therein.”
The governor may issue executive orders under this provision, including declarations of a state of emergency. Any violations of such orders can be punishable as a Class 1 misdemeanor if the order states such consequences. Declarations of a state of emergency “may address exceptional circumstances that exist relating to an order of quarantine or an order of isolation concerning a communicable disease of public health threat that is issued by the State Health Commissioner for an affected area of the Commonwealth pursuant to [another statutory provision].”
Second, the governor may appoint a State Coordinator of Emergency Management and “authorize the appointment or employment of other personnel as is necessary to carry out the provisions of this chapter, and to remove, in his discretion, any and all persons serving hereunder.”
Third, the governor may “procure supplies and equipment”; “institute training and public information programs relative to emergency management”; and “take other preparatory steps including the partial or full mobilization of emergency management organizations in advance of actual disaster, to insure the furnishing of adequately trained and equipped forces in time of need.” Fourth, the governor may conduct “studies and surveys of industries, resources, and facilities” in Virginia, if they are “necessary” to understand Virginia’s capacities and “plan for the most efficient emergency use” of them.
The fifth provision permits the governor to “enter into mutual aid arrangements with other states and to coordinate mutual aid plans between political subdivisions of the Commonwealth.” Sixth, the governor may delegate administrative authority that the chapter grants. The seventh provision echoes the first, permitting the governor to declare a statement of emergency, if, “in the opinion of the Governor, the safety and welfare of the people of the Commonwealth require the exercise of emergency measures due to a threatened or actual disaster.” Eighth, the governor may request the president to issue a major disaster declaration.
Ninth, the governor may “provide incident command system guidelines for state agencies and local emergency response organizations.” Finally, tenth, the governor may direct the issuance of “warrants” up to $2,500 per month, for up to three months, to an employee of a state or local public safety agency who is “responding to a disaster” and, in the governor’s opinion, “has suffered an extreme personal or family hardship in the affected area.” Examples of such hardships are the “destruction of a personal residence or the existence of living conditions that imperil the health and safety of an immediate family member of the employee.”
Section 44-146.28 authorizes the governor to “expend from all funds of the state treasury not constitutionally restricted, a sum sufficient” when a state of emergency has been declared. The governor can provide allotments to any state agency or political subdivision. The Virginia Department of Emergency Management is also responsible for establishing “guidelines and procedures for determining whether and to what extent financial assistance to local governments may be provided.” The statute further provides what the department must include in the guidelines or procedures. Section 44-146.18:1 additionally creates a “nonlapsing revolving fund” that the Coordinator of Emergency Management administers and which is “maintained as a separate special fund account within the state treasury.” The fund may only be used for certain listed purposes.
Section 44-146.21 governs declarations of local emergencies, which the local director of emergency management can declare “with the consent of the governing body of the political subdivision.” The provision empowers the director to take certain measures in local emergencies. Under § 44-146.19, political subdivisions are also “responsible for local disaster mitigation, preparedness, response and recovery,” and must maintain an emergency management agency. Political subdivisions may make interjurisdictional arrangements under § 44-146.20.
The statute also contains a number of provisions describing appropriate construction of the chapter. The chapter must not be construed to:
(1) Limit, modify, or abridge the authority of the Governor to exercise any powers vested in him under other laws of this Commonwealth independent of, or in conjunction with, any provisions of this chapter;
(2) Interfere with dissemination of news or comment on public affairs; but any communications facility or organization, including, but not limited to, radio and television stations, wire services, and newspapers, may be required to transmit or print public service messages furnishing information or instructions in connection with actual or pending disaster;
(3) Empower the Governor, any political subdivision, or any other governmental authority to in any way limit or prohibit the rights of the people to keep and bear arms as guaranteed by Article I, Section 13 of the Constitution of Virginia or the Second Amendment of the Constitution of the United States, including the otherwise lawful possession, carrying, transportation, sale, or transfer of firearms except to the extent necessary to ensure public safety in any place or facility designated or used by the Governor, any political subdivision of the Commonwealth, or any other governmental entity as an emergency shelter or for the purpose of sheltering persons;
(4) Affect the jurisdiction or responsibilities of police forces, firefighting forces, units of the armed forces of the United States or any personnel thereof, when on active duty; but state, local and interjurisdictional agencies for emergency services shall place reliance upon such forces in the event of declared disasters; or
(5) Interfere with the course of conduct of a labor dispute except that actions otherwise authorized by this chapter or other laws may be taken when necessary to forestall or mitigate imminent or existing danger to public health or safety.
Section 44-146.23 provides for immunities from liability, such as immunity from liability for the death or injury of individuals or damage to property as a result of “emergency services activities” pursuant to the “chapter or any rule, regulation, or executive order promulgated pursuant to the provisions” of the chapter “except in cases of willful misconduct.”
Additionally, in his March 12 executive order declaring a state of emergency, Gov. Ralph Northam cited § 44-75.1, activating the Virginia National Guard. He also activated the Virginia Post-Disaster Anti-Price Gouging Act, which prohibits price gouging during an emergency.