In a previous post, after a poor joke about the NBA’s Miami Heat, I noted that North Carolina communities may experience massive increases in 95+ degree days in coming decades.  I also described some circumstances in which North Carolina local governments would probably be legally justified in declaring local states of emergency under North Carolina’s Emergency Management Act (EMA) due to extreme heat.  Those circumstances might include situations in which extreme heat causes: (1) widespread or severe injury or loss of life (or an imminent threat thereof); (2) widespread or severe damage or property loss (or an imminent threat thereof); or (3) certain supply chain disruptions affecting or threatening to affect provision or restoration of essential services.

But even when local governments could declare extreme heat states of emergency, why would they want to?  Local governments might already be able to address extreme heat dangers without declared states of emergency.  For instance, outside of a state of emergency, they could set up cooling centers, water stations, or locations for other relief supplies for residents, like fans, hats, sunscreen, or electrolytes.  They could also offer warnings or education to people about the dangers of extreme heat.  What extra help could a locally declared state of emergency provide?

Major Reasons to Consider a Local State of Emergency for Extreme Heat

Three main reasons to consider a locally declared state of emergency for extreme heat come to mind: (1) helping to activate mutual aid agreements that provide more resources to address extreme heat; (2) potentially getting financial reimbursement for certain mutual-aid-related expenses; and (3) activating local emergency ordinance prohibitions or restrictions to address extreme-heat-related issues.  This post will explore each of these three reasons in more detail.

Helping to Activate Mutual Aid Agreements

A local government unit may not, on its own, have adequate supplies, personnel, equipment, or other resources to weather an extreme heat event.  For example, a municipality may not have the resources to set up the types of cooling centers, water stations, or supply locations mentioned above.  A mutual aid agreement might help accomplish these types of tasks.  Mutual aid agreements allow local governments to exchange resources with other government units.

Local governments do have explicit authority to enter into mutual aid agreements related to emergency management.  Under N.C.G.S. 166A-19.72, local governments can enter into mutual aid agreements related to emergency management with: (1) the governor; (2) other North Carolina local government units; and (3) other local government units outside of North Carolina.  For greater detail, my colleague, Kara Millonzi, has written a post on local governments’ use of mutual aid and other tools to help other local governments in certain emergency situations. 

Declaring a state of emergency may be necessary or helpful for activating emergency management mutual aid agreements.  For example, consider the Statewide Mutual Aid Agreement that the State of North Carolina has created and that local governments may join.  The Statewide Mutual Aid Agreement is an agreement among the North Carolina Department of Public Safety/its Division of Emergency Management (NCEM) and North Carolina local government units to help efficiently share resources, largely related to emergency circumstances.  That agreement states that:

The agreement’s definition of “emergency” mirrors much of the definition of “emergency” under the EMA word-for-word.  By its terms, this agreement does not appear to require a local government to declare a state of emergency under the EMA to request mutual aid.  But if a local government wanted to request mutual aid under this agreement, its good faith, valid declaration of a state of emergency under the EMA would, in many instances, probably help demonstrate that the local government is experiencing “an imminent or actual emergency” that justifies using mutual aid.  Further, the terms of an inter-local emergency management mutual aid agreement might explicitly require the requesting local government unit to have declared a state of emergency to ask for mutual aid.  Declaring a state of emergency for extreme heat therefore might help a local government unit receive mutual aid resources to protect residents.

Local governments interested in joining the Statewide Mutual Aid Agreement can ask questions of or request help from the state by: (1) reaching out to their NCEM Area Coordinator (contact information for each area listed here); (2) calling NCEM’s Mutual Aid Coordinator (919-621-4734); or (3) emailing ncmutualaid@ncdps.gov.

Potentially Securing Reimbursement for Certain Mutual-Aid-Related Expenses

Similarly and relatedly, a local state of emergency declaration might help a local government recoup some of its costs associated with using mutual aid resources to respond to extreme heat.  A mutual aid agreement may require the local government receiving mutual aid to reimburse the government unit providing the aid.  Under certain circumstances, Federal Emergency Management Agency (FEMA) may reimburse some of these recipient expenses, including for certain debris removal or “emergency protective measures.”  As my colleague Rebecca Badgett has written, these protective measures might include certain measures taken recently after an emergency situation to protect property, lives, health, or safety.  Extreme heat may not only cause injury or death but also endanger infrastructure or other property, like by buckling roadways and rail lines; shattering glass; causing barriers to airplane or helicopter flight; increasing drought and wildfire risk; or even causing a bridge to malfunction.  FEMA reimbursement is certainly not guaranteed.  But depending on the damage caused by extreme heat and the mutual aid resources used to address that damage, some heat-related mutual aid expenses might be reimbursable.  Again, declaring a local state of emergency might be a necessary or helpful first step to getting the mutual aid resources to begin with, which could then lead to reimbursement.

Activating Local Emergency Ordinance Prohibitions or Restrictions to Combat Extreme-Heat-Related Issues

A local government may decide that it would like to use additional emergency powers to protect residents from extreme heat.  N.C.G.S. 166A-19.31 allows local governments to pass ordinances that permit the local governments to enact special emergency “prohibitions and restrictions within the emergency area.”  However, a local government may impose these prohibitions and restrictions only “during a state of emergency declared pursuant to G.S. 166A-19.22,” the local government state of emergency declaration provision.  In other words, a governor or General-Assembly-declared state of emergency is not sufficient to allow a local government to activate these prohibitions and restrictions. 

Imposing, Enforcing, and Ending Local Emergency Prohibitions and Restrictions in General

To illuminate how this power may be helpful for an extreme heat state of emergency, this post will first review what emergency prohibitions and restrictions can be imposed during a locally declared state of emergency.  As an introduction to or refresher on local emergency prohibitions and restrictions, it will also provide an overview of the general process for imposing, enforcing, and ending local emergency prohibitions and restrictions.

Under N.C.G.S. 166A-19.31, local governments are allowed to have ordinances that impose the following types of prohibitions and restrictions during a state of emergency under 166A-19.22:

(1) Of movements of people in public places, including any of the following:

a. Imposing a curfew.

b. Directing and compelling the voluntary or mandatory evacuation of all or part of the population from any stricken or threatened area within the governing body’s jurisdiction.

c. Prescribing routes, modes of transportation, and destinations in connection with evacuation.

d. Controlling ingress and egress of an emergency area, and the movement of persons within that area.

e. Providing for the closure, within the emergency area, of streets, roads, highways, bridges, public vehicular areas, or other areas ordinarily used for vehicular travel, except to the movement of emergency responders and other persons necessary for recovery from the emergency. In addition to any other notice or dissemination of information, notification of any closure of a road or public vehicular area under the authority of this sub-subdivision shall be given to the Department of Transportation as soon as practicable. The ordinance may designate the sheriff to exercise the authority granted by this sub-subdivision. G.S. 166A19.70(c) and (d) shall apply to this sub-subdivision.

(2) Of the operation of offices, business establishments, and other places to or from which people may travel or at which they may congregate.

(3) Upon the possession, transportation, sale, purchase, and consumption of alcoholic beverages.

(4) Upon the possession, transportation, sale, purchase, storage, and use of gasoline, and dangerous weapons and substances, except that this subdivision does not authorize prohibitions or restrictions on lawfully possessed firearms or ammunition. As used in this subdivision, the term “dangerous weapons and substances” has the same meaning as it does under G.S. 14‑288.1. As used in this subdivision, the term “firearm” has the same meaning as it does under G.S. 14‑409.39(2).

(5) Upon other activities or conditions the control of which may be reasonably necessary to maintain order and protect lives or property during the state of emergency.

The local government’s ordinance does not need to authorize every single one of these prohibitions or restrictions.  And during a declared state of emergency, a local government does not need to impose every single one of the prohibitions or restrictions that it authorizes by ordinance.  Instead, the local government may write the ordinances so that whoever would impose the prohibitions or restrictions may decide which to impose or not impose during a particular emergency (N.C.G.S. 166A-19.31(b)).  By default, the local government’s governing board would be responsible for imposing the prohibitions or restrictions.  But, the local government can, by ordinance, delegate this authority.  A municipality can delegate this authority to its mayor, and a county can delegate this authority to its board of commissioners chair (N.C.G.S. 166A-19.31(a)). 

The prohibitions and restrictions selected become active during an emergency upon “publication” of the declaration imposing the prohibitions and restrictions (N.C.G.S. 166A-19.31(d)).  166A-19.31(d) details the general publication process.  Violation of any validly declared prohibitions or restrictions is punishable as a Class 2 misdemeanor (N.C.G.S. 166A-19.31(h)). 

The prohibitions and restrictions will terminate when the state of emergency terminates, but the official or body that enacted them can also terminate them earlier (N.C.G.S. 166A-19.31(e)).  Regardless of how the prohibitions and restrictions end, local governments also must give notice that they have ended in the manner specified in the statute (N.C.G.S. 166A-19.31(e1)), which involves certain electronic notification.

Norma Houston, who has now retired from the School of Government, wrote several posts related to these issues, including: a general post about local emergency restrictions; a post on enacting and amending emergency restrictions; and a post on publishing declarations imposing emergency restrictions.  These posts may be helpful starting places for more in-depth inquiries on these topics.  However, they are older, and some information is not entirely up-to-date.  Local government staff can consider consulting with their local government unit’s attorney for more detailed questions on their specific local emergency restrictions.

Prohibitions or Restrictions that Might Particularly Help with Extreme Heat

Given the specific dangers that extreme heat may present, imposing certain types of prohibitions or restrictions might be attractive to local governments experiencing an extreme heat emergency.  For example, if extreme heat is causing road buckling or bridge failures, a local government may desire to temporarily close the affected roads or bridges under 166A-19.31(b)(1)(e) until they become safe to use again.  If extreme heat has contributed to a wildfire, or if a wildfire appears imminent due to extreme heat, local governments may wish to use powers under 166A-19.31(b)(1)(b) and (c) to compel evacuations and regulate the evacuation process.  If prolonged heat exposure might cause serious health problems, local governments might also wish to limit movement outside under 166A-19.31(b)(1)(d) during certain particularly hot parts of the day.  If local governments are concerned that people may expose themselves to unsafe levels of extreme heat by gathering in popular places, they may also wish to, under 166A-19.31(b)(2), temporarily close outdoor areas where people may congregate. 

Further Legal and Policy Issues to Explore Related to Imposing Prohibitions or Restrictions

Considering using these types of emergency prohibitions and restrictions may raise additional questions or concerns for local governments:

Local governments may need to be attentive to various laws and doctrines—especially constitutional doctrines— outside of the EMA that might limit their ability to impose certain prohibitions or restrictions for extreme heat.  As examples, some restrictions limiting “movements of people in public places” might well conflict with the right to travel under the Fourteenth Amendment’s Due Process Clause and the North Carolina Constitution’s Law of the Land Clause.  These types of restrictions might also clash with First Amendment rights, including the rights of free speech and assembly.  Determining how various constitutional or other legal regimes might limit authority for any particular local government prohibition or restriction would likely be a highly fact-specific inquiry; the exact circumstances of the emergency and the nature of the restriction or prohibition would steer the analysis.  Identifying and analyzing all potential legal regimes that might limit local government authority to impose emergency prohibitions or restrictions is beyond the scope of this post.  But local governments should be broadly aware that legal doctrines outside of the EMA may limit their abilities to impose extreme heat emergency prohibitions or restrictions.  And local government attorneys will need to analyze how those doctrines limit their authority in their own specific circumstances.

Local governments may also wish to consider whether formal, legal prohibitions or restrictions (with criminal consequences) are appropriate for addressing extreme heat.  In many situations, tactics like providing education and warnings about heat hazards or providing material resources to address heat may appear sufficient to a local government.  These options have the advantage of being less coercive and punitive than formal prohibitions or restrictions.  On the other hand, perhaps prohibitions or restrictions are attractive precisely because the local government thinks that other measures are not sufficient.  Emergency restrictions that impose penalties for non-compliance may then be desirable to address the situation at hand.  Ultimately, local government units will have to decide what strategies and tactics they think would: (1) serve their communities best and (2) be legally authorized in their unique circumstances.