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Introduced Version House Bill 2003 History

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Key: Green = existing Code. Red = new code to be enacted

WEST virginia legislature

2021 regular session

                                    Introduced                   

House Bill 2003

By Delegates Summers, McGeehan, Phillips, Smith, Toney, Bruce, Kimes, Ellington, Riley, D. Jeffries, and Worrell

[Introduced February 10, 2021; Referred to the Committee on the Judiciary]

A BILL to amend and reenact §15-5-2 and §15-5-6 of the Code of West Virginia, 1931, as amended, all relating to the authority and obligations of the Governor and Legislature when in declared states of preparedness and emergency; clarifying the authority and obligations of the Governor during periods of preparedness and emergency; providing requirements for any proclamation or resolution issued relating to a state of preparedness or emergency; defining terms; specifying new criteria for the duration and termination of states of preparedness and emergency; providing directives for lawsuits filed challenging actions taken pursuant to the authority granted herein; and updating references to a state agency.

Be it enacted by the Legislature of West Virginia:

ARTICLE 5. DIVISION OF HOMELAND SECURITY AND EMERGENCY MANAGEMENT.

§15-5-2. Definitions.


As used in this article:

“Board” means the West Virginia Disaster Recovery Board created by this article;

“Code” means the Code of West Virginia, 1931, as amended;

“Community facilities” means a specific work, or improvement within this state or a specific item of equipment or tangible personal property owned or operated by any political subdivision or nonprofit corporation and used within this state to provide any essential service to the general public;

“Disaster” means the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or terrorist or man-made cause, including weapons of mass destruction, fire, flood, earthquake, wind, snow, storm, chemical or oil spill or other water or soil contamination, epidemic, air contamination, blight, drought, infestation or other public calamity requiring emergency action;

“Disaster recovery activities” means activities undertaken prior to, during or following a disaster to provide, or to participate in the provision of, emergency services, temporary housing, residential housing, essential business activities, and community facilities;

“Emergency services” means the preparation for and the carrying out of all emergency functions, other than functions for which military forces are primarily responsible, to protect, respond, and recover, to prevent, detect, deter, and mitigate, to minimize and repair injury and damage resulting from disasters or other event caused by flooding, terrorism, enemy attack, sabotage, or other natural or other man-made causes. These functions include, without limitation, firefighting services, police services, medical and health services, communications, emergency telecommunications, radiological, chemical, and other special weapons defense, evacuation of persons from stricken areas, emergency welfare services, emergency transportation, existing or properly assigned functions of plant protection, temporary restoration of public utility services and other functions related to the health, safety, and welfare of the citizens of this state, together with all other activities necessary or incidental to the preparation for and carrying out of these functions. Disaster includes the imminent threat of disaster as well as its occurrence and any power or authority exercisable on account of a disaster that may be exercised during the period when there is an imminent threat;

“Essential business activities” means a specific work or improvement within this state or a specific item of equipment or tangible personal property used within this state by any person to provide any essential goods or service determined by the authority to be necessary for recovery from a disaster;

“Local organization for emergency services” means an organization created in accordance with the provisions of this article by state or local authority to perform local emergency services function;

“Mobile support unit” means an organization for emergency services created in accordance with the provisions of this article by state or local authority to be dispatched by the Governor to supplement local organizations for emergency services in a stricken area;

“Person” means any individual, corporation, voluntary organization or entity, partnership, firm, or other association, organization, or entity organized or existing under the laws of this or any other state or country;

“Political subdivision” means any county or municipal corporation in this state;

“Recovery fund” means the West Virginia Disaster Recovery Trust Fund created by this article;

“Residential housing” means a specific work or improvement within this state undertaken primarily to provide dwelling accommodations, including the acquisition, construction or rehabilitation of land, buildings and improvements thereto, for residential housing, including, but not limited to, facilities for temporary housing and emergency housing, and any other nonhousing facilities that are incidental or appurtenant thereto;

“Secretary” means the Secretary of the West Virginia Department of Military Affairs and Public Safety Homeland Security; and

“State of emergency” means the duly proclaimed existence of, or the imminent existence of, conditions of disaster, or, of a serious threat to the safety of persons and property within West Virginia, such as an attack upon the state or the United States, a natural or man-made disaster of major proportions, or a large-scale threat beyond the capacity of local control.

“State of preparedness” means specialized planning and preparation activities intended to minimize any anticipated impact of a pending emergency initiated for the purpose of preserving and securing people or property from harm by utilization of any available governmental resources: Provided, That a state of preparedness may not be used to suspend or limit any government function or service to the public, including, but not limited to, closing public schools or governmental offices, nor to regulate or restrict any private state citizen’s conduct, such as requiring evacuation of areas of the state or other like action, unless otherwise authorized by law; and

“Temporary housing” means a specific work or improvement within this state undertaken primarily to provide dwelling accommodations, including the acquisition, construction or rehabilitation of land, buildings and improvements thereto, for temporary residential shelters or housing for victims of a disaster and such other nonhousing facilities that are incidental or appurtenant thereto.

§15-5-6. Emergency powers of Governor.


(a) The provisions of this section, and of any executive order issued pursuant to the provisions of this section, are operative only during the existence of a state of emergency or state of preparedness. Nothing in this section may be construed to suspend or supersede any provision of the Constitution.

(1) The existence of a state of emergency or state of preparedness may be proclaimed by the Governor or by concurrent resolution of the Legislature if the Governor in the proclamation, or the Legislature in the resolution, finds that an attack upon the state or the United States has occurred or is anticipated in the immediate future imminent, or that a natural or man-made disaster of major proportions has actually occurred or is imminent within the state, or that an emergency exists or may be imminent due to a large-scale threat beyond local control, and that the safety and welfare of the inhabitants of this state require an invocation of the provisions of this section.

(2) The existence of a state of preparedness may be proclaimed by the Governor or by concurrent resolution of the Legislature, if the Governor in the proclamation or the Legislature in the resolution, finds that an attack upon the state or the United States is anticipated in the immediate future, or that a natural or man-made disaster of major proportions is likely within the state or some portion thereof, or that an emergency may be likely due to a large-scale threat beyond local control, or that a major event necessitating cooperation between state and local authorities, or the federal government, is imminent, and that the safety and welfare of the inhabitants of this state require an invocation of the provisions of this section.

(b) (1) Any state of emergency or state of preparedness, whether proclaimed by the Governor or by the Legislature, terminates upon the proclamation of the termination by the Governor, or the passage by the Legislature of a concurrent resolution terminating the state of emergency or state of preparedness: Provided, That in no case shall a state of preparedness last longer than thirty 60 days, unless the Legislature, by passage of a concurrent resolution, extends the time period of the state of emergency. The Legislature may also condition, limit, terminate, or expand any action or directive made either by the proclamation of the Governor relating to the state of emergency or any executive order issued as a result of such proclamation. Upon proclamation by the Governor of a state of emergency, the Governor may call the Legislature into special session.

(2) Any state of preparedness, whether proclaimed by the Governor or by the Legislature, terminates upon the proclamation of the termination by the Governor, or the passage by the Legislature of a concurrent resolution terminating the state of preparedness: Provided, That in no case shall a state of preparedness last longer than 30 days, unless the Legislature by passage of a concurrent resolution, extends the time period of the state of preparedness. The Legislature may also condition, limit, terminate, or expand any action or directive made either by the proclamation of the Governor relating to the state of preparedness or any executive order issued as a result of such proclamation. Upon proclamation by the Governor of a state of preparedness, the Governor may call the Legislature into special session.

(c) For the purposes of calculation of the length of time of the existence of a state of preparedness or state of emergency commenced according to the provisions of this section, when the governor issues a proclamation declaring a state of preparedness or emergency, any subsequent proclamation that substantially relates to the same circumstances that caused the issuance of the initial proclamation shall be treated as a continuation of the initial proclamation for that purpose, even if the prior proclamation, has, by its own terms, expired: Provided, That when a state of emergency follows a state of preparedness, and they are substantially relating to the same circumstances, the total time allotted for the duration of the two states combined shall be no more than 60 days unless the Governor follows the requirements for extending the state of emergency under subsection (b)(1) of this section.

(d) The Governor shall have the following delineated powers which are intended to be strictly construed to authorize only those actions that are consistent with constitutional or statutory law, or with final orders of those courts of competent jurisdiction to which the Governor is subject:

(1) So long as a state of emergency or state of preparedness exists, the Governor has and may exercise the following additional emergency powers:

(1) (2) To enforce all laws and rules relating to the provision of emergency services and to assume direct operational control of any or all emergency service forces and helpers in the state;

(2) (A) To sell, lend, lease, give, or transfer property, make purchases, or deliver materials or perform functions relating to emergency services on terms and conditions he or she prescribes and without regard to the limitations of any existing law and to account to the State Treasurer for any funds received for the property;

(3) To procure materials and facilities for emergency services by purchase, condemnation under the provisions of chapter fifty-four of this code or seizure pending institution of condemnation proceedings within thirty days from the seizing thereof and to construct, lease, transport, store, maintain, renovate or distribute the materials and facilities. Compensation for property so procured shall be made in the manner provided in chapter fifty-four of this code

(4) (B) To obtain the services of necessary personnel, required during the emergency, and to compensate them for their services from his or her contingent funds or other funds available to him or her;

(5) To provide and compel the evacuation of all or part of the population from any stricken or threatened area within the state and to take steps that are necessary for the receipt and care of the evacuees;

(6) To control ingress and egress to and from a disaster area or an area where large-scale threat exists, the movement of persons within the area and the occupancy of premises therein

(7) (C) To suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders, rules of any state agency, if strict compliance therewith would in any way prevent, hinder or delay necessary action in coping with the emergency;

(8) (D) To use available resources of the state and of its political subdivisions that are reasonably necessary to cope with the emergency;

(9) (E) To suspend or limit the sale, dispensing or transportation of alcoholic beverages, explosives and combustibles;

(10) (F)To make provision for the availability and use of temporary emergency housing; and

(11)To perform and exercise other functions, powers and duties that are necessary to promote and secure the safety and protection of the civilian population.

(3) In the event of the declaration of a state of emergency, the Governor shall have and may exercise all the preceding powers delineated in this section for use in a state of preparedness, as well as the following additional emergency powers:

(A) To procure facilities for emergency services by purchase, condemnation under the provisions of Chapter 54 of this code or seizure pending institution of condemnation proceedings within 30 days from the seizing thereof and to construct, lease, transport, store, maintain, renovate or distribute the materials and facilities. Compensation for property so procured shall be made in the manner provided in Chapter 54 of this code;

(B) To provide and compel the evacuation of all or part of the population from any stricken or threatened area within the state and to take steps that are necessary for the receipt and care of the evacuees; and

(C) To control ingress and egress to and from a disaster area or an area where large-scale threat exists, the movement of persons within the area and the occupancy of premises therein.

(d) (e) The declaration of a state of preparedness has the same effect as a declaration of a state of emergency for the purposes of the Emergency Management Assistance Compact established in §15-5-22 of this code and the Statewide Mutual Aid Systems set forth in §15-5-28 of this code.

(f) Any proclamation or resolution issued under this section must include, in general terms:

(1) a description of the nature of the disaster;

(2) a designation of the geographic area threatened; and

(3) a description of the conditions that have either:

(A) caused the state of emergency or preparedness; or

(B) made possible the termination of the state of emergency or preparedness.

Any such proclamation or resolution shall be disseminated as expediently as possible by means which are calculated to bring its contents to the attention of the general public and the Joint Committee on Government and Finance of the Legislature and, unless the circumstances attendant to the state of emergency or preparedness shall prevent or impede such filing, shall be promptly filed with the Secretary of State.

(e) (g) The powers granted under this section do not authorize any action that would violate the prohibitions of §15-5-19 of this code.

(h) Any suit filed challenging an executive order issued relating to a state of preparedness or emergency pursuant to the authority granted in this section shall be limited to a petition for prohibition or mandamus pursuant to Rule 16 of the Rules of Appellate Procedure of the West Virginia Supreme Court of Appeals. The provisions of §55-17-3 of this code are not applicable to any suit filed challenging an executive order issued pursuant to this section.

 

NOTE: The purpose of this bill is to clarify the authority and obligations of the Governor and Legislature relating to declared states of preparedness and emergencies; clarifying the authority of the Governor; providing requirements for any proclamation or resolution so issued; and providing directives for lawsuits filed challenging actions taken pursuant to the authority granted herein.

Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.

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