Combating Derechos, Water Crises
& Locusts: An Overview of “State
of Emergency” Powers & Law

Peter G. Markham
General Counsel to the Office of
Governor Earl Ray Tomblin

 General Outline of Topics
• What is a “State of Emergency?”
• What are the Governor’s emergency powers?
• The Governor’s “State of Preparedness”
legislation.

 What is a “State of Emergency?”
• Proclaimed by the Governor or by concurrent
resolution of the Legislature, where:
▫ 1. An attack upon the U.S. has occurred or is
anticipated; or
▫ 2. A natural or man-made disaster of major
proportions has actually occurred or is imminent
within the State; or
▫ An emergency exists or may be imminent due to a
large-scale threat beyond local control; and

• The safety and welfare of the inhabitants of this
State require emergency assistance.
See W. Va. Code § 15-5-6.

 What is a “State of Emergency”?
• Three basic scenarios that can trigger a “State of
Emergency” declaration:
▫ Insurrections and Invasions – examples include
terrorism, enemy attack, and sabotage.
▫ Disasters – examples include fires, floods, blizzards,
earthquakes, tornados, and derechos.
▫ Large-Scale Threats Beyond Local Control —
examples include Water Crisis, Boy Scout Jamboree

 Fuel Emergencies
• W.Va. Code § 5-1-26 requires the Governor to declare a “fuel
emergency” where there is a shortage of gasoline or special
fuel and peace, health, safety, and revenues are impaired.
• This gives the Governor plenary power to issue, amend,
suspend, or revoke fuel orders, rules, and regulations. In
particular, the Governor can:

▫ Allocate or distribute fuel to the extent permitted by federal law;
▫ Control, restrict, and regulate the sale and distribution of fuel
(e.g., quotas, only buy on certain day); and,
▫ Enforce emergency fuel orders.

• As a technical matter, this section of the Code expired in the
summer of 1974 and has not been renewed.

 What is a “disaster”?
• A “disaster” is “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.” See W. Va.
Code § 15-5-2(h).

• A disaster may include “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. Id.

 Emergencies Addressed by Gov. Tomblin
• The June 2012 Derecho – the violent, widespread band of
wind and thunderstorms that raced through the entire
State, destroying trees, power lines, and poles, and leaving
1.4 to 1.6 million people without power for an extended
period during a record-setting heatwave.
• Hurricane Sandy – which triggered a statewide winter
storm that again knocked out electrical power throughout
the State for another extended period and immediately
prior to a General Election.
• The January 9, 2014, Water Crisis – caused by a chemical
spill from an aboveground storage tank in Charleston
during the week of the polar vortex; the leak contaminated
the drinking water of 300,000 residents and businesses in
nine separate WV counties.

 Can an overcrowded prison give rise to
a “State of Emergency”?
• No.
• In 1986, Governor Arch Moore issued two
executive orders directing the Commissioner of
the Department of Corrections to accept no
additional inmates in his custody until
overcrowding at Huttonsville could be remedied.
• The Supreme Court invalidated the orders in the case of Dodrill v.
Scott, 352 S.E.2d 741 (W.Va. 1986). It held that “the overcrowded
condition of our State’s penal facilities is not a situation subject to
the emergency powers of the Governor.”

 Can a pipeline explosion give rise to a
“State of Emergency”?
• It depends.
• The December 11, 2013,
pipeline explosion in
Sissonville was not declared a
“State of Emergency.”

Photos Courtesy of WSAZ-TV

 Constitutional Powers of the Governor
• “The chief executive power shall be vested in the Governor,
who shall take care that the laws be faithfully executed.” W.
Va. Const. art. VII, § 5.
• “The Governor shall be commander-in-chief of the military
forces of the State . . . and may call out the same to execute the
laws, suppress insurrection and repel invasion.” W. Va.
Const. art. VII, § 12.
• Governor can convene the legislature as necessary. W. Va.
Const. art. VI, § 19.
• Charleston is the “seat of government,” but the Gov. may
convene the Legislature in another location if needed. W. Va.
Const. art. VI, §§ 20 and 21.

 Other Constitutional Powers
• Article VI, § 54 of the Constitution provides the Legislature
with the authority to ensure the continuity of state and local
governmental operations in a disaster scenario caused by an
“enemy attack.”
• The Legislature may also “adopt other measures as may be
necessary and proper for insuring the continuity of
governmental operations.” See W. Va. Const. art. VI, § 54.
• Article VII, § 17 discusses procedures involving the death,
impeachment, resignation, or disability of the Governor.
• The State is permitted to contract debt to “suppress
insurrection, repel invasion or defend the State in time of
war.” See W. Va. Const. art. X, § 4.

 General Powers in W. Va. Code § 15-5-5
• Governor’s powers may be exercised all the time.
• The Governor may direct and control the Division of Homeland Security and
Emergency Management;
• Make, amend and rescind emergency orders, rules, and regulations;
• Develop emergency plans;
• Plan and coordinate an emergency response;
• Procure necessary supplies and equipment;
• Inform the public of an emergency;
• Partially or fully mobilize emergency services organizations;
• Enter into mutual aid agreements with other states and political subdivisions;
• Delegate administrative authority to others;
• Appoint a disaster recovery team (can include department heads, members of
the executive, technicians – whoever the particular circumstances may require);
• Cooperate with the President, the armed forces, federal officers, and other
states’ leaders to ensure civil defense of our nation and the State; and
• May shut off water, gas, and electricity; conduct evacuations and drills;
conduct blackouts and air raids, etc.

 “Emergency Management Assistance
Compact” (EMAC)
• EMAC is an agreement between several states, codified
in the W. Va. Code at s. 15-5-22.
• It sets the guidelines for how we may seek aid from or
assist another states in times of crisis.
• EMAC allows us to request personnel, equipment, and
commodities and sets forth the rules for reimbursement.

 Special Powers in W .Va. Code § 15-5-6
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Powers only available during a declared “State of Emergency.”
Governor may enforce laws, rules, and regs relating to provision of emergency services;
Assume direct operational control of any or all emergency services forces or helpers;
Sell, lend, lease, give, transfer or deliver materials or perform functions relating to
emergency services on terms and conditions as he shall prescribe and without limitation
to existing law;
Procure materials and facilities for services by purchase, condemnation, or seizure;
Obtain services of necessary personnel during an emergency and compensate them using
contingency funds;
Provide for or compel the evacuation of all or part of the population from any stricken or
threatened area and take steps necessary to receive and care for evacuees;
Control ingress or egress to and from a disaster area;
Suspend provisions of regulatory statutes prescribing the procedures for the conduct of
State business;
Utilize available resources of state and political subdivisions;
Suspend or limit the sale of alcohol, explosives, and combustibles;
Provide for the availability and use of temporary emergency housing; and
Perform and exercise such other functions, powers, and duties as are necessary to
promote and secure the safety and protection of the civilian population.

 Exercise of the Governor’s Emergency Powers
• In 1982, the U.S. sued W. Va. for $4M, seeking
reimbursement for providing temporary housing
to victims of the Buffalo Creek Disaster.
Governor Arch Moore disputed liability, claiming
his representative who requested the disaster
relief did not have express or implied authority to
bind the State.
• Judge Copenhaver’s opinion denies the parties’
cross motions for summary judgment, finding
the facts in dispute on the agency issue. But the
opinion gives a good overview of the Buffalo
Creek Disaster and some of the emergency
powers Governor Moore and his representatives
exercised in its wake.
See U.S. v. West Virginia, 537 F.Supp. 388 (S.D.W.Va. 1982)

 Other Emergency Powers of the Governor
• Unorganized Militia
▫ W. Va. Code § 15-5-19 states “the
unorganized militia shall consist
of all able-bodied men and
women between the ages of
sixteen and fifty.”

 Restriction on Powers
• 2nd Amendment Rights

▫ At one time, the Governor had explicit statutory authority to
suspend or limit the sale, dispensing, or transportation of
firearms during a declared “State of Emergency.”
▫ In 2007, the Legislature passed a bill that became W. Va. Code §
15-5-19a. It prohibits anyone acting on behalf of the State or its
political subdivisions from:
 Prohibiting or restricting the otherwise lawful possession,
use, carrying, transfer, transportation, storage, or display of a
firearm or ammunition;
 Seizing or confiscating lawfully possessed firearms and
ammunition (unless certain exceptions apply); and
 Requiring the registration of any firearm or ammunition.
▫ An individual aggrieved by state action possesses a claim in law
or equity, and may seek an injunction and the return of his or
her firearm.
▫ If the individual prevails, § 15-5-19a permits the recovery of
costs and reasonable attorney fees.

 Other Emergency Powers of the Governor
• Martial Law
▫ “temporary government and control by military
authority of territory in which, by reason of war or
public disturbance, the civil government is
inadequate to preserve order.”
• In 1912, the Mine Wars erupted and the mine operators
refused to bargain. They armed guards with machine
guns and hired scabs. Violence ensued and between 20
and 50 people were killed.
• Governor Glasscock had to declare martial law on three
separate occasions – sending the WV militia to bring
about order. Each time he withdrew the martial law
declaration, the fighting would begin anew.
• But there’s more . . .

Governor Glasscock

 Martial Law and Mother Jones
• Mother Jones and others were arrested in February 1913 for conspiracy to inflict
bodily harm and destroy property, and for the murder of two scab miners.
• Instead of being provided with civil due process, Mother Jones was whisked to the
military zone in Pratt and placed in a boardinghouse with armed guards.
• Mother Jones filed a petition in our Supreme Court, challenging, among other
things, the Governor’s exercise of emergency power.
• The resulting decision—holding that the Governor had explicit authority to
combat insurrection—in Ex Parte Jones in March 1913 was characterized by then
Attorney General Howard B. Lee as a “rape of the West Virginia Constitution.”
• Journalists visited the captive insurgent and nationwide
there was no shortage of sympathy for Mother Jones and
the plight of the union.
• Governor Henry D. Hatfield—a progressive—had been
sworn into office only days earlier. A doctor by trade,
Hatfield went into the martial law strike zone to treat the
sick and injured, including Mother Jones.
• The new Governor set about brokering a peace
agreement between the coal operators and the union,
and he set Mother Jones free.

 New Developments in the Law
• “State of Preparedness” proclamation
▫ Allows Governor to declare a “State of
Preparedness” and use all emergency powers.
• Consumer Protection

▫ W .Va. Code § 46a-6j-1, et seq.
▫ Merchants cannot take advantage of
consumers during a declared “State of
Emergency” by charging inflated prices
for essential goods.
▫ Violation of this section is a
misdemeanor.

 Post-Emergency Actions
• What did we do well?
• What have we learned?
• What can we do better
in the future?
• After Action Review
▫ Obtain concrete solutions
and suggestions for the
future.
▫ Implement necessary
changes.

 Questions
Peter G. Markham

Office of the Governor
State Capitol
1900 Kanawha Blvd. E.
Charleston WV 25305
304.558.2000