Printable Version

Legal Preparedness for Catastrophes

(Michael Greenberger, JD) -- The initial response to a public health emergency is almost always paralyzed due to uncertainties about legal authority.  A catastrophe calls into play rarely used constitutional, statutory, and regulatory provisions that give federal, state, and local governments extraordinary power.  If first responders study the law, they will find that it actually supports organizing an effective response to emergencies.

In Maryland, the Governor has primary responsibility and broad powers to respond to a catastrophic public health emergency.  Also, the Maryland state constitution and state law confer broad police and emergency powers upon the state, counties and municipalities, and upon their respective health departments and officers, to prepare for and respond to such emergencies. 

Maryland has three separate statutes addressing catastrophes preparation and response.  Under the Maryland Emergency Management Act ("MEMA"), the Governor can declare a state of emergency under threat of a number of natural events, such as hurricanes, floods, earthquakes or droughts, or in response to an act of terrorism or other public catastrophe.  Once the Governor has made such a declaration, he or she has broad authority to protect the public health, welfare or safety.  The Governor may suspend statutes, rules or regulations of a State agency; compel evacuation; authorize the use of private property and authorize the clearance and removal of debris and wreckage.  Local and state emergency management agencies established under the MEMA are charged with carrying out orders, rules and regulations made by the Governor pursuant to the Act.

The Governor also has broad authority during an emergency under Title 14, Subtitle 3 the Public Safety article of the Maryland Code.  Here the law defines public emergency generally to include "a crisis, disaster, riot or catastrophe."  After proclaiming a state of public emergency under the statute, the Governor may promulgate reasonable orders, rules and regulations to protect life and property and to terminate the emergency.  For example, the Governor may issue orders, rules or regulations to control traffic, establish curfews, and control places of amusement and assembly.  He/she may order businesses to close and in certain circumstances, order the closure of banks.

Finally, the Catastrophic Health Emergencies Act ("CHEA") allows the Governor to declare a public health emergency, defined in the act as "a situation in which extensive loss of life or serious disability is threatened imminently because of exposure to a deadly agent." The CHEA defines "deadly agent" to include anthrax, ebola, smallpox, plague and other biological and chemical agents.   Viral agents, such as those that may cause pandemic flu, are also included in the definition.  After issuing a proclamation of a catastrophic health emergency under CHEA, the Governor may issue orders to control, regulate or ration anything needed to respond to the emergency; to require individuals to submit to medical examination/testing; to establish places of treatment or quarantine; to compel health care providers to comply with directives from the Secretary of Health; and to evacuate, close or decontaminate any facility. 

Each of the above statutes defines when a Governor may declare an emergency and what actions may be taken following that declaration.  The Governor has the authority to change the type of declaration employed or simultaneously to make multiple declarations under different statutes.  This flexibility is important because a public health crisis may evolve in a way that continuously presents new challenges, requiring different responses and preventive actions authorized by different statutes. 

Fear of liability may stifle response to a catastrophic health emergency. Several laws, however, protect State employees and volunteers during such an emergency.  The CHEA protects health care providers from civil and criminal liability if they act in good faith under a catastrophic health emergency proclamation.  Maryland state employees are protected generally from liability when they take action within the scope of their public duties under the Maryland Tort Claims Act, including actions taken during a public health emergency. 

Other laws provide liability protection to individuals who travel to another jurisdiction to render aid during an emergency.  The Emergency Management Assistance Compact, a mutual aid compact whose members include all fifty states, the District of Columbia, Puerto Rico and the U.S. Virgin Islands, provides this kind of protection. Similarly, the Maryland Emergency Assistance Compact extends liability protection to officers and first responders sent to another jurisdiction within the state during an emergency. 

Local governments also have authority to prepare for and act during an emergency, including one involving public health.  Maryland county governments can create regulations on any cause of disease and to act to prevent the spread of contagious disease. Maryland’s 157 self-governing municipalities may appoint and regulate a board of health, establish quarantine regulations, and prevent the introduction of contagious diseases into the municipality.  The City of Baltimore operates much like a county and has full police powers like the state.  These broad police powers allow Baltimore City to enact and enforce a range of measures to protect the public's health.   

The authority to respond to public health emergencies is vested primarily in the states, deriving from their broad police powers under the U.S. Constitution.  The U.S. Department of Homeland Security's National Response Framework recognizes this, and emphasizes that emergencies will typically be managed at the lowest jurisdictional level possible.  However, Congress has enacted laws covering the federal government's response to emergencies, including statutes authorizing deployment of the military and other federal resources with or without the affected state’s permission. 

Federal, state and local authorities may respond simultaneously to a public health emergency.  When this happens, the doctrine of preemption will apply and federal law will preempt state or local law when Congress has demonstrated that it intended federal law to control.  Similarly, when the Maryland General Assembly has expressed an intention to have state law control, local laws will be superseded by state law.  Public general laws promulgated by the state will also preempt the local laws of Baltimore City as long as they do not seek to limit Baltimore City’s police powers.

When the government wields its broad powers during an emergency, civil liberties, such as liberty and property rights, may be infringed.  The law provides several mechanisms for challenging government actions during an emergency when civil liberties are violated.  Maryland law also makes clear that civil liberties can be fully accommodated during an emergency.  Should state and local governments exceed their authority, for example, the judiciary is responsible for reining in the offending state and local entities.   

In sum, each level of government has legal authority to prepare for and respond to a public health emergency.  The challenge is to train people on what the law is and to coordinate policy among all levels.  The University of Maryland Center for Health and Homeland Security ("CHHS") has prepared a draft Maryland Public Health Emergency Law Bench Book at the request of the Maryland judiciary that examines the current legal framework pertaining to public health emergencies more fully.  The Bench Book is meant to be a guide to the law and to provide a starting point for resolving the difficult issues that are likely to arise during a public health emergency.  A special committee of the Maryland judiciary is currently reviewing the Bench Book.   CHHS expects the bench book to serve as a framework for teaching all interested stakeholders the law of emergency response in Maryland.