Extends State of Emergency and All Existing Mitigation Orders and Closures until May 15

Montpelier, Vt. – Governor Phil Scott today extended Vermont’s State of Emergency through May 15, which also extends the expiration date of all corresponding orders and directives issued in response to the COVID-19 pandemic.

The original State of Emergency, issued on March 13, was set to expire on April 15, as were the subsequent mitigation measures. As a result of this extension, all measures, including the Governor’s Stay Home, Stay Safe order, are now in effect until midnight on May 15 (note, schools remain dismissed for in-person instruction through the end of the school year).

“These are incredibly difficult times, and I know this extension is disappointing news for many. But the fact is, Vermonters are literally saving hundreds of lives by staying home,” said Governor Scott. “We are making big sacrifices to save lives, but we cannot let our foot off the gas just yet. We will continue to watch the trends, and as soon as the data shows a downward trend, we can open the spigot, a quarter turn at a time, to get folks back to work in a way that’s responsible and safe. Please know, I will work every hour of every day, for as long as it takes, to see Vermont through this and to help rebuild stronger than we were before.”

The Scott administration developed and continues to update state-specific modeling to project COVID-19 case growth and track capacity of the healthcare system and availability of personal protective equipment (PPE) and life-saving equipment like ventilators. This data, along with guidance from public health experts at the Vermont Department of Health, has informed the mitigation measures put in place throughout this crisis.

Modeling shows that the mitigation measures have slowed the expected spread of this contagious disease but that the state has not yet hit its peak number of cases. Accordingly, Governor Scott, in consultation with Health Commissioner Mark Levine, MD, has extended the State of Emergency and all associated social distancing measures. 

In addition to extending the State of Emergency, this order addresses several technical changes and clarifications:

• With support from House and Senate Transportation Committees, directs the Department of Motor Vehicles to extend motor vehicle inspections due in April for up to 60 days.
• Effective immediately, authorizes lodging operators to accept reservations for stays and events occurring on June 15 or later.
• Clarifies that state agencies may provide non-congregate housing for isolation purposes due to COVID-19 exposure or infection to first responders, including Department of Corrections personnel, health care workers and others working to support the COVID-19 response.
• Directs the Agency of Commerce and Community Development (ACCD) to update guidance for real estate sales to ensure it applies to “for sale by owner” properties.
• Directs ACCD to clarify that essential services provided by financial, legal and professional services, as well as by municipalities, are allowed when helping Vermonters navigate and access the state and federal financial supports available in response to the economic impacts of COVID-19.
• Clarifies that protections for health care facilities, providers and volunteers afforded under 20 V.S.A. § 20 apply for the purposes of COVID-19 related emergency management services or activities.

Since declaring a State of Emergency in mid-March, the Governor has directed a number of strategies to slow the spread of COVID-19, including visitor restrictions for long-term care and other health facilities; the closure of bars and restaurants, schools and day care centers and close contact businesses; limiting the size of mass gatherings; postponing all non-essential medical procedures; issuing a Stay Home, Stay Safe order; closing in-person operations for most businesses; implementing travel restrictions and a 14-day quarantine for those entering Vermont from other states; and more.

Click here to view the full order.

For more information on the Governor’s actions, visit governor.vermont.gov/covid19response. For the latest information and guidance relating to COVID-19, visit http://www.healthvermont.gov/covid19.

From the Editor:
Governor’s emergency powers outlined in state law

Some Vermonters have asked Vermont Daily about the governor’s legal justification for declaring and maintaining a state of emergency, including the closure of businesses.

The relevant statutes can be found in Vermont State Law, Title II, Chapter 20, Section 9, and also are printed below. 

Here is my non-lawyer reading of the law, in a nutshell: during a state of emergency the governor is granted the same powers as state and local boards of health and other agencies to (among many other powers) close businesses, schools, and other institutions if public health is at risk. Basically it’s an on-steroids version of the local board of health shutting down a restaurant that has been found to have salmonella in its egg salad or rat droppings in the pantry.

The question also has been asked, ‘are we living under martial law?” Martial law – that is, applying military law to civilians – is in direct violation of the Vermont Constitution Article 17 which reads: “[Martial law restricted] That no person in this state can in any case be subjected to law martial, or to any penalties or pains by virtue of that law except those employed in the army, and the militia in actual service.”

While the Constitution does make the governor the commander in chief of the national guard, and the state law cited above empowers him to use the state’s military during a state of emergency, a state of emergency does not place Vermont under military law. It does expand significantly the civilian powers of the governor. These powers are limited by both law and Constitution. 

Several lawyers are regular readers of Vermont Daily. I would invite their input, and anyone else’s serious contribution, on the legal status of the current SOE. See below for the powers granted to the governor during a state of emergency:

Title 20 : Internal Security And Public Safety
Chapter 001 : Emergency Management
(Cite as: 20 V.S.A. § 9)
§ 9. Emergency powers of Governor

Subject to the provisions of this chapter, in the event of an all-hazards event in or directed upon the United States or Canada that causes or may cause substantial damage or injury to persons or property within the bounds of the State in any manner, the Governor may proclaim a state of emergency within the entire State or any portion or portions of the State. Thereafter, the Governor shall have and may exercise for as long as the Governor determines the emergency to exist the following additional powers within such area or areas:

(1) To enforce all laws, rules, and regulations relating to emergency management and to assume direct operational control of all emergency management personnel and helpers in the affected area or areas.

(2) To formulate and execute plans and regulations for the control of traffic and to coordinate the activities of the departments or agencies of the State and of the political subdivisions thereof concerned directly or indirectly with public highways and streets, in a manner that will best effectuate such plans.

(3) To prescribe the maximum rates of speed at which motor vehicles may be operated on any road, highway, or street in the State; prescribe the sizes and weights of such motor vehicles; suspend the application of any statute or regulation levying or assessing any license, insofar as such statute or regulation relates to the entry into or the privilege of operation in this State of any motor vehicle, including busses or house trailers, registered in any other state and with respect to which a valid and unexpired license has been issued by the other state.

(4) To employ such measures and give such directions to the State or local boards of health as may be reasonably necessary for the purpose of securing compliance with the provisions of this chapter.

(5) To utilize the services and facilities of existing officers, and agencies of the State and of the cities and towns thereof; and all such officers and agencies shall cooperate with and extend their services and facilities to the Governor as he or she may request.

(6) To use and employ within the State, from time to time, and as he or she may deem expedient, any of the property, services, and resources of the State, for the purposes set forth in this chapter.

(7) To establish agencies and offices and to appoint executive, technical, clerical, and other personnel as may be necessary to carry out the provisions of this chapter.

(8) Upon the declaration of an emergency as authorized in federal legislation that includes the State of Vermont, to cooperate with the President of the United States, the Army, Navy, and Air Force, with other federal departments, agencies, and independent establishments, and other states in matters pertaining to emergency management; and in connection therewith to take such action, not inconsistent with the Constitution and laws of the State, that he or she may deem proper to carry into effect any request of the President, the Secretary of Defense, the Secretary of Homeland Security, the Secretary of Health and Human Services, and the Director of the Federal Emergency Management Agency.

(9) To order the evacuation of persons living or working within all or a portion of an area for which a state of emergency has been proclaimed.

(10) As provided in 30 V.S.A. § 248(l), in consultation with the Chair of the Public Utility Commission and the Commissioner of Public Service or their designees, to waive the prohibitions contained in 30 V.S.A. § 248 upon site preparation for or construction of an electric transmission facility or a generating facility necessary to assure the stability or reliability of the electric system or a natural gas facility. Waivers issued under this subdivision shall be subject to such conditions as are required by the Governor and shall be valid for the duration of the declared emergency plus 180 days, or such lesser overall term as determined by the Governor. Upon the expiration of a waiver under this subdivision, if a certificate of public good has not been issued by the Public Utility Commission under 30 V.S.A. § 248, the Commission shall require the removal, relocation, or alteration of the facilities, subject to the waiver, as the Commission finds will best promote the general good of the State.

(11) In consultation with the Secretary of Natural Resources or designee, to authorize the Agency to issue temporary emergency permits, with appropriate conditions to minimize significant adverse environmental impacts, after limited or no opportunity for public comment, allowing site preparation for, construction of, or operation of an electric transmission facility or a generating facility necessary to assure the stability or reliability of the electric system or a natural gas facility. A permit issued under this subdivision shall be subject to such conditions as are required by the Governor and shall be valid for the duration of the declared emergency plus 180 days, or such lesser overall term as determined by the Governor. Upon the expiration of a temporary emergency permit under this subdivision, if any applicable permits have not been issued by the Secretary or the Commissioner of Environmental Conservation, the Secretary may seek enforcement under applicable law. (Amended 1959, No. 23, § 2, eff. March 6, 1959; 1983, No. 115 (Adj. Sess.), § 1, eff. March 16, 1984; 1989, No. 252 (Adj. Sess.), § 11; 2003, No. 82 (Adj. Sess.), § 5; 2005, No. 209 (Adj. Sess.), § 10.)

PHOTO – Berlin, Vermont police officers, other first responders, and the rest of Vermont apparently will be adjusting to the New Normal for a while longer, per today’s extension of the State of Emergency through mid-May. Berlin PD Facebook photo