By Guy Page
Some Vermonters have asked Vermont Daily about the governor’s legal justification for declaring and maintaining a state of emergency, including the closure of businesses.
The relevant statutes can be found in Vermont State Law, Title II, Chapter 20, Section 9, and also are printed below.
Here is my non-lawyer reading of the law, in a nutshell: during a state of emergency the governor is granted the same powers as state and local boards of health and other agencies to (among many other powers) close businesses, schools, and other institutions if public health is at risk. Basically it’s an on-steroids version of the local board of health shutting down a restaurant that has been found to have salmonella in its egg salad or rat droppings in the pantry.
The question also has been asked, “are we living under martial law?” Martial law — that is, applying military law to civilians — is in direct violation of the Vermont Constitution Article 17 which reads: “[Martial law restricted] That no person in this state can in any case be subjected to law martial, or to any penalties or pains by virtue of that law except those employed in the army, and the militia in actual service.”
While the Vermont Constitution does make the governor the commander in chief of the national guard, and the state law cited above empowers him to use the state’s military during a state of emergency, a state of emergency does not place Vermont under military law. It does expand significantly the civilian powers of the governor. These powers are limited by both law and constitution.
Several lawyers are regular readers of Vermont Daily. I would invite their input, and anyone else’s serious contribution, on the legal status of the current SOE. See below for the powers granted to the governor during a state of emergency:
Title 20 : Internal Security And Public Safety
Chapter 001 : Emergency Management
(Cite as: 20 V.S.A. § 9)
§ 9. Emergency powers of Governor
Subject to the provisions of this chapter, in the event of an all-hazards event in or directed upon the United States or Canada that causes or may cause substantial damage or injury to persons or property within the bounds of the State in any manner, the Governor may proclaim a state of emergency within the entire State or any portion or portions of the State. Thereafter, the Governor shall have and may exercise for as long as the Governor determines the emergency to exist the following additional powers within such area or areas:
(1) To enforce all laws, rules, and regulations relating to emergency management and to assume direct operational control of all emergency management personnel and helpers in the affected area or areas.
(2) To formulate and execute plans and regulations for the control of traffic and to coordinate the activities of the departments or agencies of the State and of the political subdivisions thereof concerned directly or indirectly with public highways and streets, in a manner that will best effectuate such plans.
(3) To prescribe the maximum rates of speed at which motor vehicles may be operated on any road, highway, or street in the State; prescribe the sizes and weights of such motor vehicles; suspend the application of any statute or regulation levying or assessing any license, insofar as such statute or regulation relates to the entry into or the privilege of operation in this State of any motor vehicle, including busses or house trailers, registered in any other state and with respect to which a valid and unexpired license has been issued by the other state.
(4) To employ such measures and give such directions to the State or local boards of health as may be reasonably necessary for the purpose of securing compliance with the provisions of this chapter.
(5) To utilize the services and facilities of existing officers, and agencies of the State and of the cities and towns thereof; and all such officers and agencies shall cooperate with and extend their services and facilities to the Governor as he or she may request.
(6) To use and employ within the State, from time to time, and as he or she may deem expedient, any of the property, services, and resources of the State, for the purposes set forth in this chapter.
(7) To establish agencies and offices and to appoint executive, technical, clerical, and other personnel as may be necessary to carry out the provisions of this chapter.
(8) Upon the declaration of an emergency as authorized in federal legislation that includes the State of Vermont, to cooperate with the President of the United States, the Army, Navy, and Air Force, with other federal departments, agencies, and independent establishments, and other states in matters pertaining to emergency management; and in connection therewith to take such action, not inconsistent with the Constitution and laws of the State, that he or she may deem proper to carry into effect any request of the President, the Secretary of Defense, the Secretary of Homeland Security, the Secretary of Health and Human Services, and the Director of the Federal Emergency Management Agency.
(9) To order the evacuation of persons living or working within all or a portion of an area for which a state of emergency has been proclaimed.
(10) As provided in 30 V.S.A. § 248(l), in consultation with the Chair of the Public Utility Commission and the Commissioner of Public Service or their designees, to waive the prohibitions contained in 30 V.S.A. § 248 upon site preparation for or construction of an electric transmission facility or a generating facility necessary to assure the stability or reliability of the electric system or a natural gas facility. Waivers issued under this subdivision shall be subject to such conditions as are required by the Governor and shall be valid for the duration of the declared emergency plus 180 days, or such lesser overall term as determined by the Governor. Upon the expiration of a waiver under this subdivision, if a certificate of public good has not been issued by the Public Utility Commission under 30 V.S.A. § 248, the Commission shall require the removal, relocation, or alteration of the facilities, subject to the waiver, as the Commission finds will best promote the general good of the State.
(11) In consultation with the Secretary of Natural Resources or designee, to authorize the Agency to issue temporary emergency permits, with appropriate conditions to minimize significant adverse environmental impacts, after limited or no opportunity for public comment, allowing site preparation for, construction of, or operation of an electric transmission facility or a generating facility necessary to assure the stability or reliability of the electric system or a natural gas facility. A permit issued under this subdivision shall be subject to such conditions as are required by the Governor and shall be valid for the duration of the declared emergency plus 180 days, or such lesser overall term as determined by the Governor. Upon the expiration of a temporary emergency permit under this subdivision, if any applicable permits have not been issued by the Secretary or the Commissioner of Environmental Conservation, the Secretary may seek enforcement under applicable law. (Amended 1959, No. 23, § 2, eff. March 6, 1959; 1983, No. 115 (Adj. Sess.), § 1, eff. March 16, 1984; 1989, No. 252 (Adj. Sess.), § 11; 2003, No. 82 (Adj. Sess.), § 5; 2005, No. 209 (Adj. Sess.), § 10.)