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Friday, September 09, 2005

Ind. Gov't. - Governor Daniels declares a disaster emergency by executive order

Governor Daniels today, September 9th,2005, has issued Executive Order 05-27. He has acted pursuant to IC 10-14-3, the Indiana Emergency Management and Disaster Law.

Some background:

EO 05-25, a brief document which the Governor issued September 6th, looks to have been the first draft of 05-27. It declares a "disaster emergency," a term of art under the law, due to the "the evacuees have sought refuge in Indiana" and authorizes the State Homeland Security Executive Director "to take such actions as he deems necessary and appropriate in order to draw upon state and local government and private sector resources in Indiana for the purpose of providing needed assistance to these evacuees."

EO 05-26, also issued September 6th, provides that "Motor carriers and drivers transporting gasoline, diesel fuel, and jet fuel in Indiana to address transportation needs arising from the hurricane disaster are exempt from compliance with any applicable state statute, order, or rule substantially similar to, or giving effect to, 49 CFR Parts 390-399. Any such provision of a state statute, order, or rule is suspended as it relates to such motor carriers and drivers." This is followed by a paragraphs 3, 4, and 5 clarifying and limiting the scope of the exemption. Paragraph 6 provides: "The State of Indiana will waive the enforcement of all applicable laws and regulations governing the transport of oversized tractor trailer loads for the limited purpose of allowing federal government contractors to transport mobile homes for Hurricane Katrina relief efforts for a period of ninety (90) days, subject to renewal if necessary."

The most recent Executive Order, 05-27, however, is different. It provides that all state agency heads:

shall be authorized and empowered to take such actions as they deem necessary or appropriate to support ongoing emergency management and disaster relief efforts relating to, or to cope with temporary economic disruption caused by, Katrina, including without limitation:
(i) the amendment, rescission, suspension or waiver of rules, regulations, orders, policies, procedures, guidelines, or statutory penalties consistent with any initiatives taken or authorized by federal agencies having the same or similar subject matter jurisdiction, and

(ii) the exercise of emergency rulemaking authority, where applicable, or the taking of other administrative action necessary to adopt, issue, amend, suspend or waiver rules, regulations, orders, policies, procedures, guidelines or statutory penalties for the purpose of supporting emergency management and disaster relief efforts, prodviding assistance and services to evacuees relocating to Indiana, or coping with temporary economic disruption caused by Hurrican Katrina, including fuel shortages.

Under the Indiana Constitution, Article 1, Section 26:

The operation of the laws shall never be suspended, except by the authority of the General Assembly.
In IC 10-14-3, the Indiana Emergency Management and Disaster Law, the General Assembly gave the governor certain powers in times of emergency. Foremost is the power to declare a disaster emergency, by executive order, found at IC 10-14-3-12(a). And at subsection (d)(1):
(d) In addition to the governor's other powers, the governor may do the following while the state of emergency exists:
(1) Suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business, or the orders, rules, or regulations of any state agency if strict compliance with any of these provisions would in any way prevent, hinder, or delay necessary action in coping with the emergency.
My view. The General Assembly, in accord with Art. 1, sec. 26 of the Indiana Constitution, has via IC 10-14-12 delegated to the Governor the authority to suspend specific state laws and rules by executive order, during a disaster emergency, with limitations. The Governor, via EO 05-27, has re-delegated this legislative authority to un-named state agency heads, without any requirement that their actions comply with the minimal safeguards that are present in an executive order -- specificity, in writing, promulgated to the public (even if only by posting in a collective centralized online location, as are the Governor's executive orders), recordkeeping.

As shown by Katrina, particularly in times of disaster emergency when communication is difficult and limited, it is essential to have procedures in place beforehand so that people know where to look to see what exceptions, if any, may have been made to the laws and rules of the State.

Posted by Marcia Oddi on September 9, 2005 07:02 PM
Posted to Indiana Government