In times of disaster, many jurisdictions will declare a state of emergency, often without fully realizing the potential of what that emergency declaration can do. Many jurisdictions might also NOT declare a state of emergency, similarly because they don’t realize the potential of what it can do. In the US, state laws provide for certain powers of governors and local officials, which include the ability to declare a state of emergency (or similar language). State laws typically provide for a formal procedure for the declaration, which generally include certain notifications to other government officials and the public. Issuing a state of emergency can be one of the most important things that elected officials can do to support response and recovery efforts. While declaring a state of emergency is itself important, it’s really what you do with it that counts.
Most state officials are fairly well versed in emergency declarations, but many local officials really don’t know what an emergency declaration is or does, much less how to actually issue one. Because of the differences in state laws, this is really on state emergency management agencies to promote to their local governments. Many do a good job of it, including it in training and orientation materials for new local emergency management officials, as well as guidance for local elected officials. While I strongly feel that emergency managers should be advising elected officials on state of emergency declarations, many jurisdictions obviously don’t have their own emergency manager. I’ve also seen many emergency managers simply not communicate the information with their local elected officials until they feel it’s necessary. Obviously this isn’t the way to go. Elected officials with this authority should be well aware of it, how it’s done, when it should be done, and how it’s done well ahead of any disaster – even if the EM wants to (and should) be advising when the time comes.
So what can the declaration of a state of emergency get you? First of all, it makes an important statement that there is a serious situation probable or at hand. Most state laws seem to allow for the situation to be from an incident or event, and arising from a natural hazard, technological hazard, or human action. The declaration provides a notice to the public, surrounding jurisdictions, and the state that there is a danger to the public and/or property. I’ve seen disaster declarations for a specific property, a neighborhood or other geographic area, or for entire jurisdictions; any of which can be valid depending on the situation at hand. Unfortunately, this is where I see a lot of emergency declarations stop. They simply aren’t utilized any further than this.
Some states require local emergency declarations to support a request for state assistance, while others do not require one to be in place. While state laws have some differences, one of the most significant doors that an emergency declaration opens is the ability for emergency issuance or suspension of local laws. These can, again depending upon specific state laws, allow for things such as:
- Establishing a curfew and/or limiting traffic or access to and within certain areas
- Order prolonged evacuation of buildings and areas
- Closing places of amusement or assembly
- Limiting or suspending the sale, use, or transportation of alcoholic beverages, firearms, explosives, or other hazardous materials
- Establishing emergency shelters or other facilities
- Suspension of local laws, ordinances, or regulations (in whole or in part) which may prevent, hinder, or delay disaster response or recovery actions.
Over the past nearly two years, we’ve seen emergency orders issued regarding limiting density in certain locations, the requirement of masks, requirement of vaccinations, etc. Unfortunately, the political divisiveness of the pandemic has caused emergency declarations and emergency orders to become political, with many state legislatures pushing to make changes to state laws to restrict the ability of governors and local elected officials in this regard. While checks and balances are important, we need to be very careful in how we may inadvertently hinder a response and life safety actions. These matters must be carefully reviewed with multiple perspectives and scenarios studied.
Declaring a state of emergency should be a consideration in your emergency plan. It’s an important tool for incident management, and just like most tools in higher level incident management, we don’t do it with enough frequency to remember how to do it. Ensure that emergency operations plans include information on declarations, including a job aid for issuing a state of emergency and associated emergency orders. As with all aspects of our plans, it should also be exercised. It’s a great item to include for discussion in a tabletop exercise and to go through the motions of in a functional exercise.
It’s also important to note that state laws may allow for various entities to declare a state of emergency. For example, in New York State, a county Sheriff can declare a ‘special emergency’. Doing so provides the Sheriff with specific authorities to support the management of an emergency. While I always appreciate having several avenues available to tackle a problem, I’m regularly concerned with duplication of effort, or, even worse, conflicting information. It certainly could occur that the emergency orders of a Sheriff’s declaration of a ‘special emergency’, the orders of a county executive, and those of local governments could conflict or not be consistent. This is why relationships and ongoing coordination are important.
What best practices have you seen for issuing a state of emergency and emergency orders?
© 2021 Tim Riecker, CEDP
The Contrarian Emergency Manager 
As you know when a disaster creates a mass casualty event such as a pandemic or a CBERN, the shortages that can occur are those of staff, stuff, & space.
Staff: in Massachusetts a few years before COVID the state passed a law mandating minimum nurse-staffing for routine ICU-level care, 1 RN to no more than 1 patient, with exceptions to be determined essentially by the RN (I’m summarizing here). When the Gov declared a state of emergency b/c of Covid he suspended that law, allowing hospitals to staff us well below that minimum (to be clear, the minimum never had an enforcement mechanism in 1st place). What my facility did was we went from the standard 1 ICU RN:2 patient ratio (I said the law was not enforced) to 1 ICU RN:~2 non-ICU RNs:~4 patients, with (sensibly enough) non-ICU RNs doing non-ICU-level care needs and the ICU RN doing the ICU-level care. In my experience the system worked, in sense that I’m not aware of any worse outcomes from the “team nursing” system.
Stuff: I think the state helped us, and in any case we managed to, get an increase in supplies incl PPEs. There were delays but state policy can only have helped¬ hindered.
Space: the state opened up alternative-care sites at facilities that were semi-governmental or I think private: a sports/concert arena in central MA, another one that I think may be part of the UMass system in the north, a convention center under a state govt “authority” in Boston. Each of these were dedicated to noncritical patients. With their usual uses shut down, it made sense to use these facilities as bed space, and the AAR (which I’m not privy to) will likely show they helped decompress hospitals incl ICUs. A further step for the next surge is to utilize rooms in closed nursing homes (there’s a large one just in my town).
These are supply-side. On what we can conceptualize as the demand side, an option is to shift to crisis standards of care, known colloquially as rationing, to shift resources away from those less likely to benefit to those more likely (each group “demanding” care if you will). I think the number of jurisdictions that have done this, with or without an emergency declaration, is 3: AZ, ID, MT. MA has not I’m glad to say; we do have a draft plan as do many states, but ours is multiply flawed as are the others I’ve read.
We should eagerly await the data on how the care–and the patients–have fared under crisis standards.
Many people see a State of Emergency as forcing people to do things they do not want to do. In reality, there are many examples of using the extraordinary powers to enable elected officials to support people who are trying to do the right thing:
“Conscripting” ten willing Amateur Radio Emergency Service volunteers to assist with emergency communications when the employers threatened to fire the them. The legislation in that jurisdiction said you cannot lose your job if you have been conscripted.
Allowing a bulk fuel supplier to break contracts with their major customers when that supplier was the only supplier that had fuel. By “forcing” the supplier to break the contract, they were able to supply fuel for responders and snow clearing equipment during a blizzard.
Shutting down the electrical grid when high winds had already blown poles down and started enough fires that the emergency services were stretched. While shutting down the grid risks lawsuits, being “forced” to shut it down provided liability protection to the provider.
The legislation is an important part of emergency management. In Canada, even a State of Emergency does not give anyone any power they want. In fact, all legislation remains in place and you must follow all laws unless it must be temporarily suspended for the purposes of the emergency. You cannot use any powers for anything other than the emergency stated during the declaration. The powers should be used for when you must use it, not for convenience or to get around existing laws.
Canada follows the British system where ” …in an emergency a municipality may take whatever actions or measures are necessary to eliminate the emergency. (Section 551(1) Alberta Municipal Government Act. This provides the ability to exercise almost unlimited powers to deal with an emergency at the scene. This was introduced in England around 1866″ “The power here described is probably the largest ever granted to any individual in this country and it of course requires to be used with great discretion but it is to be observed that it has been in force now for upwards of ten years and that although it has been brought into active operation about 16 000 times no serious question has yet arisen as to the mode in which it has been exercised. (Page 294 – “Fire Protection, A complete manual, 1876”).
The municipal “State of Local Emergency” or the Provincial “State of Emergency” are different from the local and immediate powers of the Municipal Government Act (MGA) Where the MGA only applies “at the emergency scene”, the SOE and SOLE allow the powers to be used in all areas NOT immediately at risk from the emergency. This can be used to support emergency response efforts, prepare the next areas at risk, or reduce the work load on the leadership by stopping excess activities, even routine work or public events.
In some places, the powers are restricted; the powers given must fall within the stated list. In other jurisdictions, the powers are not limited to just what is in the legislation. This is the difference between “may do the following” and “may do all acts including the following”. A couple of words can make a huge difference! The Act may not specifically mention “bulldozing houses to make a fire-break” but the wording of “including the following” does not restrict you.
Issues of compensation and claims should be addressed. In an emergency, things go wrong. If you are bulldozing houses, the homeowner does not have to file an insurance claim – they should be compensated by the jurisdiction. Therefore, you also need a mechanism for resolving disputes over the value of the house and contents. The $10 offered for an old picture frame does not cover the emotional value the picture holds. Responders and “conscripted volunteers” get hurt, personal equipment gets damaged or destroyed, and costs still need to be covered. Are volunteers covered for Workman’s Compensation if they get seriously hurt? It depends on the legislation. What if they bulldozer is damaged?
Finally, with extraordinary powers must come extraordinary protections. When exercising the powers, things go wrong. While home owners may not be happy if their house was bulldozed but the fire was stopped by that action, or the house was bulldozed but the fire swept through anyways, but how will the homeowners feel if the houses were bulldozed and the fire was stopped two blocks before it reached the fire-break? The third outcome is equally as likely as the first two. It must be understood that the legislation must prevent action being taken against officials trying to do the right thing or no official will every make the tough decisions.
When you are bull-dozing million-dollar properties (Fort McMurray 2016, Kelowna 2003, Slave Lake (2011) to build a fire-break, you had better know exactly what the legislation says you can or cannot do! Especially when the bulldozer gets stuck in a basement and subsequently gets burned over….
The legislation is fascinating – and important.
Really great perspective Tom! Thanks for sharing!