Changes in the Emergency Management Act Effective January 1 2023

With a New Year comes new changes. This year the Emergency Management Act as gone through some of its own changes after about a decade since the last revisions. Here I will lay out the changes that became effective on January 1, 2023, and address how these changes may impact the local decision maker during disasters.

166A-19.3 Definitions offered us three new definitions this year. First, 2(d) is Concurrence of the Council of State; second, 2(m) is Council of State and finally 20 is State-wide Emergency Area. The Council of State is a collection of elected State government officials consisting of the Lieutenant Governor, Secretary of State, Auditor, Treasurer Superintendent of Public Instruction, Attorney General, Commissioners of Agriculture, Labor and Insurance. If at any point these positions are filled by a non-elected official that person as an interim official is still a consensus providing member of the Council. Concurrence of the Council of State is a concurrence or non-concurrence for the Governor to exercise specific powers listed within the Emergency Management Act. Finally, a State-wide Emergency Area is any emergency declaration that encompasses two-thirds or more of the State’s counties.

Next this year has offered us changes in the Expiration of States of Emergency, previously the Governor’s State of Emergency expired either when rescinded or when it was not timely renewed. Prior to this year’s update a gubernatorial power was to unilaterally extend the issued State of Emergency. Now if a statewide emergency area exists, §166A-19.20(c)(2), a State of Emergency will automatically expire in 30 days without a concurrence of the Council of State. Further there are prohibitions on splitting the declared area or on issuing a new State of Emergency on substantially similar grounds.

While the changes in the Emergency Management Act are focused most significantly on the gubernatorial powers there are potential ripple effects that may affect the local decision maker in times of disaster. The local government powers have not been changed by this year’s revision but the changes may alter how local officials decide to address disasters in their area. With these changes it might be prudent to exercise local states of emergency if your community is threatened with an emergency situation. Here are some helpful tips about enacting a local state of emergency.

Templates:

There are templates available on the School of Government NC Emergency Management page under sample documents. Please note that these templates require the users input and should be reviewed by your local legal representative prior to being published.

When can you declare a SOE:

A State of Emergency can be declared if there is an emergency or imminent threat of emergency. Just because an emergency may occur at some point in the future does not constitute an emergency eligible for a declaration. What constitutes an emergency is further defined in §166A-19.3.

Who can declare a SOE:

For local governments, counties, towns or cities, the authority to declare a local state of emergency rests with the governing board itself, as defined in §166A-19.22 and §166A-19.31. However, the governing board may delegate this authority to a representative such as the mayor or board chair via a local ordinance (typically referred to as an emergency ordinance). If the mayor or board chair has been delegated this authority, they may declare a state of emergency without further action by the governing board. If the designated representative is not available the individual designated to act in lieu of the representative generally is allowed to declare a state of emergency.

What restrictions are available with a SOE:

The restrictions available to local governments are outlined in §166A-19.31. It is crucial to note that while a restriction may be available to a local government it is important to consider whether it is necessary or suitable to a particular state of emergency.

Changing a SOE:

You can always alter a local state of emergency. Any modifications can be made through issuing an amendment; but they must be made in the same manner as original declaration.

Rescinding a SOE:

Unless an ordinance adopted pursuant to §166A-19.31 provides otherwise, a local state of emergency shall expire when it is terminated by the official or governing body that declared it.

Please feel free to reach out with questions or if there are other topics that you would like to see blog posts on. Kathryn Van Tol, kvantol@sog.unc.edu

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