2012 Emergency Management Legislative Wrap-up: Big Changes Ahead

During the 2012 Session, the North Carolina General Assembly enacted significant legislation that completely reorganized and updated the state’s emergency management statutes, extended the legal length of law enforcement and emergency management vehicles, and created the criminal offense of terrorism.  What do these legislative actions mean for North Carolina emergency managers and local governments?

Modernize NC Emergency Management Act  The reorganization act, S.L. 2012-12 (HB843), is called the “Modernize NC Emergency Management Act.” It represents the most comprehensive update and reorganization of our state’s emergency management statutes since their enactment over three decades ago.  Its primary purpose is to consolidate and reorganize the statutes that establish emergency management authorities for state and local governments currently found in two completely distinct parts of the General Statutes – Article 1 of G.S. Chapter 166A (North Carolina Emergency Management Act of 1977) and Article 36A of G.S. Chapter 14 (Riots and Civil Disorders).  Chapter 166A was enacted in 1977 to update the old civil preparedness laws.  Article 36A was enacted in 1969 during the height of the civil rights era.  Article 1 defines responsibilities within State government for direction and control of the state’s emergency management program, and authorizes cities and counties to establish local emergency management programs (municipal emergency management programs are subject to coordination with the county).  Article 36A authorizes cities and counties to enact ordinances imposing various restrictions and prohibitions during a locally declared state of emergency. S.L. 2012-12 (HB843) amends these emergency management statutes in four primary ways:  First, it consolidates and reorganizes all state and local emergency management authorities and responsibilities into one place in the general statutes, a new Article 1A of Chapter 166A.  The consolidated provisions are reorganized into logical sections and parts, making it easier to research and identify relevant laws and authorities. Second, the Act clarifies and makes uniform the terminology used throughout the emergency management statutes – for example, a state of emergency is now “declared” (under current law it is either “declared” or “proclaimed,” resulting in either a “declaration” or a “proclamation”).  More importantly, the legislation draws a clear distinction between a state of emergency declaration and a disaster declaration – the former being the declaration issued by either the governor or a city or county local government official when there is an actual or imminent threat of an emergency, while the latter is a declaration issued by the governor based on the severity and impact of an emergency and which triggers state assistance programs.  The terms “emergency” and “disaster” are similarly distinguished.  Under the new law, an emergency is an actual or imminent “threat of widespread or severe damage, injury, or loss of life or property resulting from natural or man-made accidental, military, paramilitary, weather-related, or riot related case.” (S.L. 2012-12, sec. 1.(b), G.S. 166A-19.3(6)).  In short, an emergency is the threat event itself, while a disaster represents the degree and severity of the emergency’s impact as declared by the Governor. Third, the Act incorporates operational practices that have evolved in recent years, and clears up points of confusion under current law, including:

• Codifying existing operational practices of the NC Division of Emergency Management establishing clear authority for DEM to maintain the state Emergency Operations Center (EOC) and a 24-hour operations center, plan for emergencies at nuclear power facilities, and manage mutual aid.

•  Eliminating prior statutory inconsistencies in the expiration date of a local state of emergency by simply providing that a local state of emergency remains effective until it is terminated by the issuing authority.

• Clarifying the geographic scope of a local state of emergency declaration by authorizing local officials to define the emergency area to which a declaration applies as being part(s) or all of their jurisdiction.

• Clearly authorizing local officials to impose the emergency restrictions or prohibitions deemed necessary in response to a particular emergency (in other words, clarifying that all restrictions and prohibitions provided for in local ordinances are not automatically triggered when an emergency is declared).

• Specifically including among local emergency restrictions the authority to impose a curfew and order evacuations that may be either voluntary or mandatory.

• Authorizing a mayor to extend county emergency restrictions into the jurisdictional area of a mayor’s municipality (previously, only the municipality’s governing board could take this action).

• Increasing the penalty for violations of local emergency restrictions from a Class 3 misdemeanor to a Class 2 misdemeanor to be consistent with the punishment for violations of emergency orders issued by the governor.

Fourth, in response to the federal court’s decision in Bateman v. Perdue, (No. 5:10-CV-265-H (E.D.N.C. filed Mar. 29, 2012), the Act limits the restrictions and prohibitions that cities and counties can impose on dangerous weapons during a locally declared state of emergency.  Local officials are still authorized to impose restrictions and prohibitions on the possession, transportation, sale, purchase, storage, and use of dangerous weapons and substances and gasoline (a “dangerous weapon or substance” is defined in G.S. 14-288.1(2)), but under the new Act, these restrictions now cannot apply to “lawfully possessed firearms and ammunition” (a firearm is defined as a handgun, rifle, or shotgun).  The Act also repeals G.S. 14-288.7, which automatically prohibited the off-premises possession or transportation of a dangerous weapon (including a firearm) when a state of emergency is declared or within the vicinity of a riot (a violation of this statute is punishable as a Class 1 misdemeanor). What the Act does not do is fundamentally alter the legal or operational relationships between cities, counties, and the state.  Nor does it contain a significant number of substantive changes – roughly 90% of the bill’s text is virtually identical to existing law. The Act goes into effect on October 1, 2012.  Cities and counties that declare a state of emergency prior to this date should operate under existing law, but are strongly advised to comply with the new limitation on lawfully possessed firearms and ammunitions discussed above if they elect to impose restrictions or prohibitions on dangerous weapons. Other Emergency Management Changes A second piece of legislation was passed, S.L. 2012-90 (SB798), titled “Various Emergency Management Changes.” It was recommended by the Senate Select Committee on Emergency Preparedness and Response, and makes additional modifications to the emergency management statutes by:

• Extending the expiration dates of gubernatorial disaster declarations (Type I expiration extended to 60 days; Type II expiration extended to 12 months with a total limit of 24 months; Type III disaster extended to 24 months).

• Providing that obligations under federal-state agreements are not affected when a Type II or Type III disaster declaration expires.

• Expanding the liability protection for private property owners whose property is used for emergency management purposes under the direction and control of state or local government.  The protection now includes use of the property for all emergency management functions and activities (this provision was originally introduced in HB842).

• Formally establishing the State Emergency Response Team (“SERT”) and identifying the representative group of state agency personnel designated to carry out emergency management support functions identified in the state emergency response plan.  The Director of the Division of Emergency Management is designated the SERT leader, and management of SERT is added to the Division of Emergency Management’s responsibilities and duties.

• Expanding the functions of the Division of Emergency Management to include coordinating with the Commissioner of Agriculture on agriculturally-related matters in the state emergency response plan.

• Creating the Joint Legislative Emergency Management Oversight Committee.  The Committee is made up of 6 members of the Senate and 6 members of the House, and is authorized to examine issues related to emergency management in North Carolina on an ongoing basis and make recommendations to the General Assembly.

This second piece of legislation goes into effect immediately, and is structured to conform to the statutory reorganizations enacted in HB843 when that legislation becomes effective on October 1, 2012. Emergency Vehicle Length A third act, S.L. 2012-33 (HB741), amends G.S. 20-116(d) to extend to 45 feet the legally allowed length of state and local government law enforcement and emergency management vehicles (under current law, the length limitation for these vehicles was 40 feet). Terrorism Criminal Offense Finally, S.L. 2012-38 (HB149) creates a new criminal offense of terrorism by amending G.S. Chapter 14 to create a new Article 3A (G.S. 14-10.1).  “Terrorism” is defined as committing an act of violence, including a violation of G.S. 14-17 (murder), G.S. 14-18 (manslaughter), or any other felony acts of assault, use of force or violence against a person, or use of explosives, or uses of nuclear, biological , or chemical weapons of mass destruction, with the intent to intimidate the civilian population or an identifiable group of the civilian population or influence, through intimation, the activities or conduct of the federal, state, or local government.  The new offense of terrorism is separate from the underlying felony, and is punishable as one felony class higher than the underlying offense (however, if the underlying felony is a Class A or B1, then the offense of terrorism is punished as a Class B1).  Real and personal property used in the course of committing the offense of terrorism is subject to seizure and forfeiture. Comparing Emergency Management Changes to Existing Law To assist emergency managers and others who work in this area identify and understand the reorganization, consolidation, and update of emergency management statutes enacted in S.L. 2012-12 (HB843) and S.L. 2012-90 (SB798), the author has created a conversion of these Session Laws to regular statutory format which identifies substantive changes and cross-references new and existing statutes.  This statutory conversion is included with the 2012 Legislative Summary available on the SOG Emergency Management website at www.sog.unc.edu/ncem under “Legislative Updates.”  (Caveat: This statutory conversion does not represent the official codification of S.L. 2012-12 and S.L. 2012-90, and is intended for general reference and educational purposes only). Other Legislative Updates If you are interested in learning about other legislative actions during the 2012 Session of interest to local governments, check out the SOG Legislative Summaries webpage.  And it’s not too late to register for our Local Government Legislative Review Webinars on July 18^th and July 26^th.