Coming to Virginia – a New State of Emergency?

Written for Bacon’s Rebellion by James C. Sherlock

The Governor’s 15-month emergency powers expired June 30, and, God, does he miss them.

From The Virginian-Pilot:

“School districts that aren’t requiring masks, including several in Hampton Roads, are running afoul of state law, Gov. Ralph Northam said Thursday.”

OK.

The bigger questions are:

• how long the governor will put up with the lack of emergency powers;

• when he will start to follow Virginia’s Pandemic Emergency Annex to its Emergency Operations Plan; and

• is the General Assembly even interested?

Why is this man smiling?

The law. 

The Commonwealth of Virginia Emergency Services and Disaster Law of 2000 remains unamended based on the experiences of COVID.

I broke down the flaws in detail last year.

One justification for emergency gubernatorial powers in that law was:

“because governmental inaction for the period required to amend the law to meet the exigency would work immediate and irrevocable harm upon the citizens or the environment of the Commonwealth.”

If the next emergency declared by the governor is again COVID, he and the General Assembly will not be able to claim that they did not have sufficient time to “amend the law to meet the exigency”.

Emergency Operations Plan. 

There was plenty of time in the 2021 session of the General Assembly to enshrine the provisions of the pandemic annex in state law.

§ 44-146.17. Powers and duties of Governor.

… The Governor shall have, in addition to his powers hereinafter or elsewhere prescribed by law, the following powers and duties:

(1) To proclaim and publish such rules and regulations and to issue such orders as may, in his judgment, be 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. He may adopt and implement the Commonwealth of Virginia Emergency Operations Plan, which provides for state-level emergency operations in response to any type of disaster or large-scale emergency affecting Virginia and that provides the needed framework within which more detailed emergency plans and procedures can be developed and maintained by state agencies, local governments and other organizations.

So, the language says he may. Anyone think it should say shall? Or is that going too far?

Anyone think the emergency operations plan and all of its annexes should be exercised every couple of years? There is no such requirement in Virginia law. And it was not exercised. Is that just an “oops,” or should the law demand it?

Stockpiles

“He may adopt and implement the Commonwealth of Virginia Emergency Operations Plan”

Does that include the now-disappeared “Pandemic Emergency Annex” that we exposed here? I summarized that annex in detail at the end of March 2020.

You know, the one that since 2012 had required the development and stockpiling of pandemic response materials such as PPE? Surely we now have filled the stockpiles? Haven’t we?

Just asking.

There is a fund authorized in the law:

1. For costs and expenses, including, but not limited to personnel, administrative, and equipment costs and expenses directly incurred by the Department of Emergency Services Management or by any other state agency or political subdivision or other entity, acting at the direction of the Coordinator of Emergency Services Management, in and for preventing or alleviating damage, loss, hardship, or suffering caused by emergencies, resource shortages, or natural or man-made disasters; and

2. For procurement, maintenance, and replenishment of materials, equipment, and supplies, in such quantities and at such location as the Coordinator of Emergency Services Management may deem necessary to protect the public peace, health, and safety and to preserve the lives and property and economic well-being of the people of the Commonwealth;

But those words were unchanged even in 2020 revision of the version in effect since 1976.

That law does not ever use the word “stockpile” or refer to other provisions of the Virginia Emergency Operations Plan that clearly need to be directed in law. That would at least draw the attention of the executive branch to it.

You may think that filling pandemic emergency stockpiles is a perfect use of some of the federal COVID funds?

I searched the current $4.3 billion budget bill for the word “stockpile” and got “no results found”.  Must not be a lobby for stockpiles.

A fresh start for the governor. 

And the Governor gets a do-over if he declares another COVID emergency.

Except as to emergency plans issued to prescribe actions to be taken in the event of disasters and emergencies, no rule, regulation, or order issued under this section shall have any effect beyond June 30 next following the next adjournment of the regular session of the General Assembly but the same or a similar rule, regulation, or order may thereafter be issued again if not contrary to law;

Perhaps the 2021 General Assembly could have fixed that.

Perhaps legislators could have limited the term of the emergency by requiring authorization by the General Assembly after 60 days or so. Republicans brought it up. Five Senate bills to amend the law were introduced in the August 18 2020 special session, all by Republicans.

Democrats were not having it. Government executive branch power unchecked by the General Assembly? What’s not to like?

Should we give them a pass because as a group General Assembly members have no idea what is in the Emergency Operations Plan Pandemic Annex? After all, neither does most of the executive branch.

Still.

And they could not find it if they looked on the state web site. It remains deleted since the day after I reported on it. Luckily, we saved them one.

I am sure they appreciate it.