Improving Legislative Oversight of Emergency Authorities

2025-26 BUDGET Improving Legislative Oversight of Emergency Authorities GABRIEL PETEK | LEGISLATIVE ANALYST APRIL 2025 www.lao.ca.gov 1 AN LAO REPORT 2 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT Executive Summary The Legislature Has Granted Broad Authorities to the Governor to Respond to Emergencies. Because disasters require swift action, the Legislature has granted broad authorities to the Governor to declare states of emergency and respond. Following such a declaration, emergency laws provide the Governor with extensive authorities which are often exercised through executive orders. These authorities include the ability to temporarily amend or make statute and spend any available funds to respond to the emergency. Emergency Laws Sometimes Cede Core Legislative Power Unnecessarily and Lack Adequate Oversight. We find that the current emergency laws lean more heavily toward giving the Governor flexibility to respond to emergencies than necessary at the expense of the Legislature’s core constitutional powers. This is particularly concerning given that there are often inadequate legislative oversight mechanisms in place. Specifically, we identify the following concerns: • Governor Can Bypass the Legislative Process Unnecessarily. The Governor determines when a state of emergency exists and, as a result, determines when typical legislative budget and policy processes do not need to be followed. This allows Governors to proclaim states of emergency even in cases where, arguably, normal budget and policy processes could have been used. • No Process to Ensure Authority Is Promptly Restored to Legislature. There is no formal process to assess whether a state of emergency should remain in effect. This has resulted in many remaining open longer than necessary. • Limited Role for Legislature in Ongoing States of Emergency. There is no formal way for the Legislature to raise objections to or terminate specific parts of the Governor’s use of emergency authorities. Additionally, the Legislature does not have an opportunity to review and provide oversight of emergency expenditures before they occur. • Limited Requirements to Provide Legislature With Information on Use of Emergency Authorities. Due to a lack of such requirements, the amount of information provided by the administration on emergency response activities has varied. Similarly, the Legislature has often received little information on how emergency response funds are being used. • Governor’s Emergency Spending Authority Lacks Oversight Mechanisms. The Governor’s emergency spending authorities are extremely broad and allow the Governor to spend an essentially unlimited amount of funds on emergencies with very little oversight. In many cases, these aspects of California’s emergency laws stand in contrast to federal, other state, and local emergency laws. Recommendations. To better balance the Governor’s need for flexibility with the Legislature’s ability to retain its core powers and exercise oversight during and after emergencies, we recommend the Legislature take the steps below, which would result in a new emergency process summarized in the figure. • Adopt Statute Specifying Governor Should Not Use Emergency Authorities When Existing Processes Suffice. This would minimize the extent to which the Legislature must cede its core powers to the Governor. www.lao.ca.gov 3 AN LAO REPORT • Require States of Emergencies to Expire Unless Renewed by Governor at Specified Time Periods. As part of the renewal, any executive orders not identified as necessary would automatically expire. Going forward, any new executive orders that are needed could only be issued after advanced notification is provided to the Legislature, unless the Legislature waives this requirement. • Require the Administration to Provide Certain Information Prior to Renewal. This would include: (1) a description of how emergency authorities have been used, (2) conditions that warrant keeping the emergency open, (3) which executive orders are still needed and what actions the Governor expects to take, (4) why those executive orders (rather than normal budget and policy processes) are needed, (5) specific conditions needed to terminate the state of emergency, and (6) anticipated dates for termination. • Create Sunset for States of Emergency That Are Open for an Extended Period of Time. This would create a mechanism to ensure any authority needed to continue emergency response activities would go through the normal legislative budget and policy processes. However, we recommend allowing the Legislature to waive this requirement for a set amount of time, if conditions warrant. • Require the Administration to Submit a Report After Emergency Expires. This would enhance legislative oversight by providing the Legislature with more information about how the Governor used emergency authorities. • Reform Emergency Spending Authorities to Enhance Legislative Oversight. We recommended (1) requiring all emergency augmentations come from one fund, (2) establishing an amount for that fund in the budget, (3) requiring advanced notice to transfer additional monies into the fund and (4) requiring reporting on planned and actual emergency expenditures. Summary of Recommended Emergency Process Initial Declaration of Review and Renewal of Sunset of State of Emergency Emergency Authorities Emergency Authorities Ability to use emergency Governor may use all Emergency expires unless authorities expires unless currently authorized renewed by Governor. this requirement is waived emergency authorities. After initial response After extended period, by the Legislature. efforts, such as such as one year or more. a few months. If renewing, the Governor must Governor must use report on why renewal is After emergency is over, existing budget and necessary, which executive Governor must report on policy processes if orders are still needed, and actions taken, why the possible. why normal processes cannot emergency ended, spending be used. information, and any lessons learned. After renewal, Legislature must be notified before any new executive orders can be issued, unless this requirement is waived by the Legislature. Governor must use existing budget and policy processes if possible. 4 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT INTRODUCTION California’s diverse landscape and climate mean a state of emergency, and how these authorities the state regularly faces emergencies such as have been used over time. Next, we assess the wildfires and floods. From time to time, the state degree to which the authorities granted to the also responds to emergencies that are rare due to Governor are necessary to facilitate emergency how infrequent they are—such as earthquakes and response and whether there are adequate oversight public health emergencies—or their size, such as mechanisms of this authority in place. Finally, the January 2025 Southern California wildfires. All we make various recommendations intended to of these emergencies require swift and coordinated allow the Legislature to exercise more of its core efforts to protect communities. Effective emergency budget and policymaking powers and ensure response is critical given the threat emergencies there is adequate oversight of the Governor during often pose to both life and property. emergencies, while still preserving considerable To help facilitate effective emergency response, flexibility for the state to respond swiftly. the Legislature has granted authority to the We note that the primary focus of our report Governor to proclaim a state of emergency and is not to assess the state’s responses to recent given the Governor broad authorities to undertake emergencies, such as the January 2025 Southern activities related to proclaimed emergencies. These California wildfires. Rather, our goal is to take authorities are designed to give the administration a broader look at the structure of emergency flexibility to rapidly respond to emergencies. In authorities—much of which has been in place for this report, we describe the core constitutional decades—with a focus on ensuring the Legislature powers of the Legislature, how the Legislature has a meaningful role in overseeing emergency has delegated some of these powers to allow the response efforts that will inevitably be needed in Governor to exercise emergency authorities during the future. LEGISLATURE HAS GRANTED BROAD AUTHORITY TO THE GOVERNOR TO RESPOND TO EMERGENCIES Below, we describe the powers the Constitution the judicial branch. Core powers of the Legislature provides to the Legislature and how, through include enacting laws, appropriating funds, and statute, the Legislature has delegated some of levying taxes through the annual state budget this power by granting authority to the Governor and other legislation. In contrast, the Governor’s to respond to emergencies. We also provide an core executive powers include executing and overview of how recent Governors have used enforcing statutes, while the core powers of the this authority. judicial branch include interpreting statutes and determining their constitutionality. California Constitution Establishes Legislative Budget and Policy Process Core Powers of the Legislature Designed to Be Deliberative. The exercise of Legislature Responsible for Enacting Laws, legislative powers—namely making budget and Appropriating Funds, and Levying Taxes. The policy decisions—can often take time. For example, California Constitution establishes three kinds the Legislature typically deliberates over the annual of power exercised by the state government: state budget bill from January until June. Moreover, legislative, executive, and judicial. The Constitution policy bills often take at least several months to be generally requires that these powers be separately reviewed, considered, and enacted. This process exercised by the Legislature, the Governor, and is designed to allow the Legislature to seek input www.lao.ca.gov 5 AN LAO REPORT from stakeholders, consider trade-offs, and build the capacity of the state and local governments consensus among a majority of members in to respond, typically when the amount of damage each house. In contrast, the Governor can make caused by disaster events exceeds certain per decisions more quickly. capita dollar thresholds. Emergency Proclamations Made in Writing Legislature Has Granted Governor and Often Include Executive Orders. CESA Authority to Proclaim a State of requires the Governor to make emergency Emergency proclamations in writing. Governors’ proclamations Responding to an Emergency Requires Swift typically include the specific conditions bringing Action. Responding to an emergency frequently about the state of emergency, the areas affected, requires that actions be taken quickly. Accordingly, the anticipated impacts, and a list of executive in many cases, the deliberative approach typical orders that implement the Governor’s emergency of legislative decision-making can be impractical authorities (discussed in greater detail below). and the Governor can be better positioned to take The Governor’s proclamation is filed with the decisive action. This is compounded by the fact Secretary of State and publicly posted on the that the Legislature goes into recess for a few Governor’s and Governor’s Office of Emergency months each year. Additionally, the Governor has Services’ (OES) websites. (CESA establishes OES direct authority over the state entities that carry as the state entity responsible for overseeing the out emergency response activities. In recognition state’s response to emergencies.) of these important differences, the Legislature Governor Has Various Emergency has granted the Governor significant authority and Authorities Following Proclamation of flexibility to respond to state emergencies, as we describe in more detail below. State of Emergency Statute Establishes Process Allowing CESA Provides Extensive Emergency Governor to Proclaim a State of Emergency. Authorities. Through CESA, the Legislature has In 1970, the Legislature adopted the California granted the Governor significant authorities to Emergency Services Act (CESA), which grants respond to emergencies—effectively delegating the Governor the authority to proclaim a state of some of its core powers to the Governor—to ensure emergency when there exist conditions of disaster that the state can adequately address emergencies. or extreme peril to the safety of people and In particular, CESA allows the Governor to: property. Under CESA, the Governor may proclaim • Suspend any regulatory statute, or statute a state of emergency in an area affected by a prescribing the procedure for conduct of state natural or human-made disaster, when (1) requested business, or the orders, rules, or regulations to do so by the governing body of the local agency of any state agency, where the Governor affected, or (2) the Governor finds the local determines that strict compliance with them authority is inadequate to cope with the emergency. would in any way prevent, hinder, or delay In addition, depending on the severity of the addressing the emergency. emergency conditions, local, state, and federal • Have complete authority over all agencies agencies can issue other types of emergency of the state government and the right to declarations. For example, the governing body of an exercise all police power in responding to the affected local government—such as a city council— emergency. Courts have interpreted this to can declare a local emergency if it determines a mean that the Governor may temporarily make natural or human-made disaster is or is expected to or amend statute to respond to an emergency. be beyond its capacity to respond to and recover • Spend any available funds—including General from. Moreover, at the federal level, the President Fund resources—to respond to an emergency. can also make similar emergency declarations. For When redirecting special funds dedicated for example, the President can make a Major Disaster a specific purpose, state law requires that the Declaration when there is a natural event beyond 6 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT funds be repaid. However, no specific deadline publicity and notice” of orders made during an for repayment is specified. (Additionally, emergency. This is typically accomplished by some emergency-related spending may posting executive orders to the Governor’s website. occur without an emergency declaration, as Authorities Remain in Effect Until the described in the nearby box.) Governor or Legislature Terminates the • Use state department personnel, property, Emergency. CESA requires that the Governor equipment, and appropriations to respond to terminate a state of emergency at the earliest an emergency, even if originally intended for possible date that conditions warrant. The other purposes. Legislature may also terminate a state of emergency • Commandeer or utilize generally any private by concurrent resolution (a measure that must be property deemed necessary in carrying out approved by both the Senate and Assembly but the responsibilities vested in the Governor not the Governor). The authorities granted to the as Chief Executive of the state. In these Governor under CESA end only when the state situations, the state pays the reasonable value of emergency has been terminated. Similarly, the to the owners. Statute does not specify a executive orders the Governor issues during an deadline for the state to repay the owners. emergency also generally remain in effect until the emergency has been terminated or the Governor Authorities Generally Exercised Through chooses to rescind them earlier. Executive Orders. The Governor generally California Disaster Assistance Act (CDAA) exercises these authorities by issuing executive Authorizes Spending From Special Disaster and orders. For example, in March 2023, Governor Emergency Account. CDAA provides a variety Newsom issued an executive order waiving statute of authorities to respond to emergencies. Most to ease access to unemployment benefits for notably, the statute authorizes the Department of people unemployed as a result of severe winter Finance (DOF) to transfer funds from the Special storms that struck the state in February 2023. Fund for Economic Uncertainties (SFEU) to the As mentioned above, these executive orders are Disaster Response-Emergency Operations Account often included in the proclamation declaring the (DREOA) and allocate funds from DREOA to state emergency though the Governor may also issue departments for disaster response operations them separately. For example, Governor Newsom costs. (The SFEU is the state’s discretionary budget issued over 20 executive orders related to the reserve of the General Fund.) Funds are allocated January 2025 Southern California wildfires following from DREOA immediately upon notification to the initial emergency proclamation for the disaster. the Joint Legislative Budget Committee (JLBC) CESA requires the Governor to provide “widespread by DOF. Initially, the use of DREOA for each Some Emergency-Related Spending Can Occur Without an Emergency Declaration Some funds for emergency-related activities are included in the annual budgets of departments tasked with responding to emergencies, such as the Governor’s Office of Emergency Services and the California Department of Forestry and Fire Protection (CalFire). These funds can be used without an emergency declaration as they are made available by the Legislature exercising its constitutional appropriation power through the normal budget process. For example, CalFire’s wildfire protection budget includes the Emergency Fund (E-Fund). The E-fund is an amount budgeted for emergency fire protection and is intended to enable the department to pay for the costs of responding to large wildfires. (For more on this and our recommendations for improving legislative oversight of the E-Fund, please see The 2023-24 Budget: Improving Legislative Oversight of CalFire’s Emergency Fire Protection Budget.) www.lao.ca.gov 7 AN LAO REPORT emergency is limited to 120 days following provides opportunities for the state to seek financial the Governor’s declaration of the emergency. assistance through federal government programs. However, the Governor can extend the use of One such program is the Federal Emergency DREOA for emergency-related activities in 120-day Management Agency’s Public Assistance Program, increments—even if the proclaimed state of which typically pays at least 75 percent of eligible emergency has ended. In this way, DREOA funds state and local government costs in responding can be available for response operations that might to a disaster and repairing public facilities after arise beyond the state of emergency. Notably, a disaster. these extensions can generally only be made Governors Have Used Emergency through the end of the fiscal year in which the first 120-day extension was made. The Legislature Authorities in Various Ways established this limit on the use of DREOA on the Numerous Emergencies Proclaimed, basis that, if the administration needs to spend Mostly for Wildfires and Storms. Based on funds on an emergency beyond the time allowed, our review of proclamations published on the it could seek such funds through the state’s Governors’, OES’, and the California State Library’s annual budget process. Submitting these requests websites, Governors have proclaimed 295 states through the annual budget process ensures that of emergency from the beginning of Governor the Legislature retains its core powers and that Schwarzenegger’s term in November 2003 through such expenditures are subject to normal legislative December 2024, as shown in Figure 1. oversight mechanisms. By type, wildfires and storms made up the Emergency Proclamations Allow Governor to majority of these proclamations. Of the 295 Request Federal Assistance. A proclamation of a emergencies, wildfires represented 130 (44 percent) state of emergency is required for the state to apply while storms represented 86 (29 percent) as shown for several types of federal assistance. For example, in Figure 1. The remaining include 11 droughts it is a prerequisite for the state to request that the (4 percent), 9 earthquakes (3 percent), and 6 energy President make a Major Disaster Declaration, which and 6 health emergencies (2 percent each), as Figure 1 Number of Emergencies Vary, With Wildfires and Storms Being Most Common 30 Other 25 Energy Storm Wildfire 20 15 10 5 2003ª 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 Schwarzenegger Brown Newsom a Includes only emergencies declared during Governor Schwarzenegger's term, which started on November 17, 2003. 8 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT well as 5 freeze and 5 wind-related emergencies to direct DOF to allocate funds from DREOA for (2 percent each). The remaining 37 (13 percent) emergency response activities, including hazardous consisted of other types of emergencies, including debris removal or the procurement of goods, such those related to oil spills, snow melts, gas leaks, as trailers, to assist with wildfire response efforts. and tsunamis. …But Wider Range of Authorities Have Been States of Emergency Are Proclaimed Before Used in Some Instances. For emergencies that and After Events. Some states of emergency are are novel or occur less frequently, Governors have proclaimed to authorize response activities before used emergency authorities to take a much wider an event takes place. For example, in August 2023, range of actions. For example, CESA authorities the Governor proclaimed a state of emergency in have been used to issue executive orders: advance of Hurricane Hilary’s projected landfall • Requiring the public—except for those working in Southern California. This allowed the Governor in critical infrastructure sectors—to stay at to mobilize and coordinate resources ahead of home to reduce the spread of the virus during the storm’s forecasted impacts. Emergencies the COVID-19 pandemic. have also been proclaimed after events causing • Redirecting state employees—also during the the emergency conditions have passed. This can COVID-19 pandemic—to “contact tracing” happen within a couple of weeks of the emergency activities, which involves conducting case event, but also after significant time has passed. investigations and notifying people who may For example, the Alisal Fire started on October have been exposed to the virus of the need 11, 2021, and continued until November 20, 2021. to quarantine. However, the Governor proclaimed a state of • Requiring the California Department of Public emergency related to the fire on July 1, 2022—over Health to assist the San Bernardino County seven months after the wildfire ended. A delay in Division of Environmental Health Services the proclamation of an emergency can be due to (SBDEHS) until the division could attain the fact that the extent of damage might not be normal staffing levels following a 2015 terrorist fully known until time has passed from the disaster attack on a training session involving 80 or it can take time for the costs of a disaster SBDEHS employees. to accumulate to a point where an emergency declaration is necessary. • Requiring all state agencies with expertise in the removal of highly explosive materials to Certain Types of Authorities Are Frequently assist local law enforcement with responding Used During Emergencies… Some types of to the discovery of an illegal bomb making emergency response activities taken with CESA operation in a house in Escondido in 2010. and CDAA authorities occur relatively frequently. For example, after wildfires and storms, Governors Significant Resources Spent on Emergency often use CESA authorities to issue executive Response. Since 2016-17, Governors have orders (1) requiring state agencies to use their generally allocated hundreds of millions to billions of resources to respond as directed by OES; dollars each year to state departments from DREOA (2) requiring state agencies to take specific actions, for various emergencies. As shown in Figure 2 such as directing the California Department of on the next page these allocations were notably Transportation to request federal assistance for higher from 2018-19 to 2021-22 due to extreme highway repairs and reconstruction; (3) suspending wildfire seasons and the COVID-19 pandemic. It is statutes related to contracting to allow state important to note that allocations are sometimes agencies to procure necessary supplies and based on cost estimates—rather than actual costs services; and (4) suspending certain statutes to incurred—for performing the emergency response ease access to unemployment benefits for those activities. Accordingly, not all of the funds allocated unemployed as a result of the disaster. In addition, to departments might be expended, as we the Governor often uses the authority in CDAA discuss later. www.lao.ca.gov 9 AN LAO REPORT November 2003 through December Figure 2 2024 had been terminated by the Billions of Dollars Allocated to end of 2024. These terminated Emergencies From DREOA in Some Years emergencies remained open for an average of about three Spending From DREOA (In Billions) and a half years. The remaining 53 states of emergency declared $8 since October 30, 2015 that were 7 still open on December 31, 2024 6 had been open for an average of 5 about two years—ranging from a couple weeks to over nine years. 4 (No states of emergency declared 3 before October 30, 2015 are still 2 open.) Governors choose to keep states of emergency open for 1 various reasons, such as ongoing 2016-17 2017-18 2018-19 2019-20a 2020-21 2021-22b 2022-23b recovery efforts or the continued a The statute authorizing DREOA temporarily lapsed between January 1, 2018 and February 13, 2018. need for certain authorities to b Allocations in 2021-22 and 2022-23 were notably lower because COVID-19 expenditures were largely included in the respond to an emergency. For state budget as opposed to DREOA allocations as they had been in 2020-21. example, multiple drought states DREOA = Disaster-Response Emergency Operations Account. of emergency proclaimed in 2021 remained open into 2024 because Many Proclamations Stay Open for at the administration indicated that certain areas were Least a Few Years. A total of 242 of the 295 still experiencing groundwater supply shortages states of emergency proclaimed between the and domestic well failures. beginning of Governor Schwarzenegger’s term in EMERGENCY LAWS SOMETIMES CEDE CORE LEGISLATIVE POWERS UNNECESSARILY AND LACK ADEQUATE OVERSIGHT When considering emergency authorities granted limited oversight mechanisms to ensure the to the Governor, the Legislature has the difficult Governor is using this authority consistent with task of balancing two key goals: (1) providing legislative intent and priorities. We also highlight a enough flexibility for the Governor to respond couple of examples where Governors have used effectively and swiftly during emergencies and these authorities in ways that were potentially (2) maintaining and exercising the Legislature’s inconsistent with legislative priorities and/or core constitutional powers. Overall, we find that with very little legislative input and oversight. It the current emergency laws lean more heavily is important to note, however, that our primary toward flexibility than necessary in some cases. focus is not on how Governors have used these This is particularly concerning given that there are authorities to date. Rather, we are more concerned often inadequate mechanisms in place to allow the that, without action by the Legislature to establish Legislature to effectively conduct oversight of the a process for better maintaining its core powers Governor’s use of emergency authorities. Below, we and ensuring adequate oversight, future Governors identify key instances where the existing emergency could choose to use emergency authorities in more laws cede a substantial amount of the Legislature’s concerning ways. core powers to the Governor and contain relatively 10 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT Governor Can Bypass the authorities granted to the Governor—should remain Legislative Process Unnecessarily in effect. This means there is no formal process for the Legislature to regain its authority, short of Under CESA, the Governor determines when ending the entire emergency through concurrent a state of emergency exists and, as a result, resolution. Officials under the current administration determines when typical legislative budget and stated that they have established a process for policy processes do not need to be followed. Such regularly reviewing ongoing states of emergency. a structure allows Governors to proclaim states Through this process, they coordinate with state, of emergency even in cases where, arguably, regional, and local officials to confirm whether the normal budget and policy processes could have authorities under an ongoing state of emergency been used. For example, in March 2019, Governor are still needed. This appears to be a reasonable Newsom proclaimed a state of emergency to starting point for reviewing the ongoing need for implement 35 forest management projects emergencies, but it has a couple of key limitations. that were intended to reduce the risk of wildfire First, this process does not include a systematic through activities such as removing hazardous way to keep the Legislature informed of the ongoing dead trees and clearing vegetation. The California need for states of emergency or a clear opportunity Department of Forestry and Fire Protection for the Legislature to weigh in on whether the (CalFire) had been undertaking forest management administration still needs the emergency authorities. projects for a number of years beforehand, using Second, it appears that the requirement to terminate normal processes to do so. However, the state of emergencies at the earliest possible date is not emergency proclamation authorized the Secretary always adhered to. This is demonstrated by the of the Natural Resources Agency and the Secretary fact that Governors have often terminated states of of the California Environmental Protection Agency emergency in batches. For example: to suspend state environmental permitting requirements in order for CalFire to implement the • On March 10, 2005, Governor Schwarzenegger 35 projects immediately. Moreover, the state of terminated 17 emergencies dating back emergency suspended certain requirements for to December 1998. All but two had been licensing and procurement. Although this allowed proclaimed under previous administrations but the administration to expedite the completion of had not been terminated. these priority projects, the state of emergency was • On May 18, 2011, Governor Brown terminated not addressing an active emergency event and it is 103 states of emergency dating back to June reasonable to think that the Governor could have 2004. All of these states of emergency were instead used existing budget or policy processes proclaimed under the previous administration to preserve a role for the Legislature. For example, but had not been terminated. the Governor could have used legislation with • On December 23, 2019, Governor Newsom an urgency clause to obtain the suspensions he terminated 61 states of emergency dating was seeking. Declaring an emergency instead back to January 2011. All of these states precluded the Legislature from providing input on of emergency were proclaimed under the proposed projects and whether they warranted the previous administration but had not suspending state law and regulations. been terminated. • On February 25, 2022, Governor Newsom No Process to Ensure Authority Is terminated 11 states of emergency that had Promptly Restored to Legislature been proclaimed between 2015 and 2021. Legislature Cedes Authority Longer Than We find it unlikely that numerous emergencies Necessary. CESA requires the Governor to were all resolved on the same day, meaning that at terminate a state of emergency at the earliest least some of the states of emergency terminated in possible date that conditions warrant. However, batches should have been terminated at an earlier it does not establish a formal process for the date. The lack of a required process for reviewing Governor and/or Legislature to assess whether or renewing the continuing need for states of a state of emergency—and all of the associated www.lao.ca.gov 11 AN LAO REPORT emergency in CESA enables the Governor to retain At the federal level, the National Emergencies Act some of the Legislature’s core powers beyond (NEA) was enacted in 1976 to rein in presidential the time that conditions warrant contrary to the emergency powers and provides that a national legislative intent expressed in CESA. emergency will end automatically after one Requirement to Review or Renew year unless the President publishes a notice of Emergencies Exist in Numerous Jurisdictions. renewal in the Federal Register. (The Federal The lack of a review or renewal requirement Register is the official daily publication for rules, stands in contrast to state law as it applies to proposed rules, and notices of federal agencies local emergencies in California. Specifically, when and organizations, as well as executive orders a local emergency is declared by a city, county, and other presidential documents.) The NEA also or city/county governing body, CESA requires allows a national emergency to be ended upon a the emergency to be reviewed every 60 days by presidential declaration terminating the emergency the governing body until the local emergency is or if Congress enacts a joint resolution terminating terminated. Moreover, compared to other states, the emergency. California is an outlier by not requiring states of Limited Role for Legislature in Ongoing emergency to expire unless renewed. Specifically, States of Emergency 36 states limit the amount of time states of emergency can be open before the Governor CESA Only Allows Legislature to Terminate or Legislature must act to renew them—ranging Entire Emergency. Although CESA allows from 15 days to six months. For example, Florida the Legislature to terminate an entire state of state law requires a state of emergency to expire emergency by concurrent resolution, it does not after 60 days unless renewed by the Governor. create a formal process whereby the Legislature Figure 3 shows the distribution of the 36 states can raise objections to or terminate specific parts of by the amount of time in which their Governors or the Governor’s use of emergency authorities. As a Legislatures must act. result, in the event that the Legislature agrees with the need for the Governor’s proclamation of a state of emergency but disagrees with a specific action or authority, the Figure 3 Legislature must weigh whether to Numerous States Require Emergencies end the entire state of emergency— Be Renewed After Set Time which could hinder ongoing emergency response and recovery Number of States by the Amount of Time Before Renewal Required efforts—or continue to allow the Governor to act in ways that are 20 contrary to legislative interests. 18 For example, if the Legislature 16 had concerns with any of the 14 Governor’s actions during the 12 COVID-19 pandemic—such as how 10 long the stay home order remained 8 in place—its only option would 6 have been to end the emergency. 4 Ending the emergency not only 2 could have prevented the Governor 15 days 21 days 28 days 30 days 45 days 60 days 90 days 180 days from taking steps the Legislature thought necessary to protect public safety, but also could have prevented the state from qualifying for significant amounts of federal 12 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT funding. Such a scenario illustrates how the current suspensions or modifications, (2) terminate them, or structure makes it difficult for the Legislature to (3) call a special session of the Legislature to review exercise oversight of the Governor’s use of authority and approve or reject them. Moreover, during during emergencies. certain states of emergency that last longer than CDAA Does Not Provide for Legislative 30 days, the Utah Governor generally must notify Oversight Before Funds Are Allocated. Similarly, the Legislative Emergency Response Committee at as noted above, DOF is only required to notify least 24 hours before issuing an executive action. JLBC at the time of allocating funds from DREOA In addition, in Florida, statute allows the Legislature and sometimes the information provided is limited. to terminate any specific order, proclamation, or Accordingly, the Legislature does not have an rule under a state of emergency at any time by opportunity to review and provide oversight concurrent resolution. Upon such a concurrent of a substantial level of emergency response resolution, statute requires the Florida Governor to expenditures before funds are allocated to issue an executive order or proclamation consistent individual departments. For example, in July 2021, with the concurrent resolution. Such mechanisms Governor Newsom proclaimed a state of emergency allow these legislatures to provide input into to address energy supply and demand issues ongoing states of emergency while also maintaining during extreme heat events that were resulting some of the flexibilities that their Governors might in immediate and projected energy shortfalls in need to respond. the summers of 2021 and 2022. In particular, the Limited Requirements to Provide proclamation directed the Department of Water Legislature With Information on Use of Resources (DWR) and the California Energy Commission to procure materials, goods, and Emergency Authorities services necessary for energy generation projects CESA Has Few Requirements to Provide to be online by October 31, 2021. In response, Information. Under CESA, the Governor is required DWR procured four gas generators through a to provide “widespread publicity and notice” of $171.5 million allocation from DREOA in August orders made during an emergency. However, there 2021. This action prevented the Legislature from are no requirements that the Governor provide weighing in on the procurement of the generators the Legislature with specific types of information when it appears that there was interest in doing and at predetermined time intervals. As a result, in so. Specifically, the Chair of the JLBC noted in a previous years, the amount of information provided January 24, 2022 letter to the administration that directly to the Legislature on the Governor’s the use of DREOA limited reasonable oversight emergency response activities has varied. At times, and that the Legislature never had the opportunity the administration has established a process for to thoroughly review the expenditure of these updating the Legislature with information on such funds. Moreover, the Chair went on to note that activities during ongoing states of emergency. it was unprecedented for the state to purchase For example, during the COVID-19 pandemic, large natural gas generators to address statewide the administration set up regular meetings with emergency demands and that doing so was an the Legislature to provide updates on emergency inefficient use of state funds and should not be response activities, such as the availability of repeated. However, because of the authority ceded personal protective equipment and various to the Governor through CDAA, the Legislature executive orders that had been issued. Similarly, had no clear opportunity to weigh in before the the administration regularly briefed the Legislature generators were purchased. on its response to the January 2025 Southern Legislatures in Other States Have Greater California wildfires. However, this process has not Oversight of Ongoing Emergencies. Utah’s been consistently established for other states of emergency statute requires the Governor to report emergency. Moreover, establishing such a process certain suspensions and modifications of statute to is not required by CESA, thus other Governors its Legislative Management Committee, which then would not be bound to such a practice in the future. may recommend that the Governor (1) continue the www.lao.ca.gov 13 AN LAO REPORT CDAA Has Only Limited Information specifically to the wildfires, the administration was Requirements. Under CDAA, funds are allocated required to provide much more detailed spending from DREOA immediately upon notification of information than otherwise. Neither the voluntary nor JLBC by DOF. However, there is no requirement mandated provision of additional information to the on the type of information that must be included Legislature by the administration appears to have in the notification. As a result, notifications impeded its response efforts in these cases. have often included very little information. For Lack of Such Information Requirements example, in a May 4, 2017 letter to JLBC, DOF Contrasts With Federal and Some States’ indicated that the California Military Department Statutes. Federal statute requires the President required $1.6 million from DREOA for “unexpected to provide Congress with information related equipment and personnel costs” stemming from to declared emergencies, which can enhance emergencies declared related to rainstorms and congressional oversight. Specifically, the NEA the damaged spillway of the Lake Oroville dam. provides mechanisms for enhanced congressional Basic information—such as how much was needed oversight of national emergency declarations. In to respond to each emergency as well as what particular, the NEA requires the President to: equipment and personnel were needed and why— • Specify which statutory emergency authorities was not provided with the notification. Moreover, the President intends to invoke upon a CDAA does not require any subsequent update declaration of a national emergency. on the actual expenditure of DREOA funds, which • Maintain records and transmit to Congress all further limits legislative oversight. For example, in rules and regulations promulgated to carry out the 2024-25 budget, the administration reverted such authorities. $1.7 billion from DREOA transfers dating back to 2018-19 that had not been spent by departments. • Provide an accounting of expenditures The administration explained that this largely directly attributable to the exercise of such resulted from overestimating the California authorities for every six-month period following Department of Resources Recycling and Recovery’s the declaration. costs for removing debris caused by wildfires. Had Some other states also have specific it not been for this reversion, the Legislature likely requirements for the provision of information to their would not have known that $1.7 billion went unused. state legislatures during an emergency. For example, The lack of information on actual use of the funds is under Colorado law, the Governor must provide particularly concerning given how little information is information “of a comprehensive nature” about an provided on their planned use. This makes it difficult ongoing emergency to certain legislative committees for the Legislature to conduct oversight of the and respond to questions from committee Governor’s use of emergency spending authorities. members about the emergency. Additionally, under Providing Enhanced Information Does Kentucky law, the Governor is required to provide Not Appear to Have Impeded Past Response the Kentucky Legislature specific expenditure Efforts. One potential reason for not requiring the information—such as all contracts issued and administration to provide more information to the federal funds received during the emergency—every Legislature is that meeting such requirements could 30 days following the declaration of an emergency. require diverting state resources from important Governor’s Emergency Spending emergency response activities. However, we do not see any evidence that additional information Authority Lacks Oversight requirements adopted during certain past Mechanisms emergencies have had a major effect on response As we noted in our report, The 2021-22 Budget: efforts. For example, as mentioned above, the Improving Legislative Oversight of Emergency administration voluntarily provided more information Spending Authorities, the Governor’s emergency than currently required on its COVID-19 and spending authorities are extremely broad and allow January 2025 Southern California wildfire response the Governor to spend an essentially unlimited efforts. Moreover, under legislation that applied amount of funds on emergency-related activities 14 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT with very little opportunity for the Legislature to as any available state employees and resources provide effective oversight. For example, CESA during a state of emergency. If such a redirection spending authorities have no legislative notification took place on a large enough scale, it could have or reporting requirements. As such, the Governor serious consequences, such as undermining the could—without any legislative action or oversight— structure and condition of the state budget. This is a reallocate to emergency response activities any considerable unilateral authority for the Governor to legally available funds in the state treasury as well wield without any meaningful oversight mechanisms. RECOMMENDATIONS Below, we outline some steps the Legislature period of time (such as a few months), the Governor could take that would help it exercise some of its would be required to review states of emergency, core powers and ensure adequate oversight, while determine whether they need to continue, and still preserving considerable flexibility for the state submit information to the Legislature on the activities during emergencies. (The Legislature could, of conducted. Second, after a somewhat longer period course, choose to take a different mix of actions of time (such as one year or more), the Governor’s depending on how it balances these different emergency authorities would automatically expire factors.) In large part, these recommendations focus and the normal legislative budget and policy on ensuring the normal legislative process is used processes would be used to authorize any remaining whenever possible and, whenever it is not possible, activities needed for response or recovery, unless a that there is adequate legislative oversight. One waiver is granted by the Legislature. This process is key part of our recommendations is to establish a summarized in Figure 4. We discuss this process, new two-step process that would occur after the as well as our other recommendations, in more Governor has declared an emergency. First, after an detail below. emergency declaration has been in effect for a set Figure 4 Summary of Recommended Emergency Process Initial Declaration of Review and Renewal of Sunset of State of Emergency Emergency Authorities Emergency Authorities Ability to use emergency Governor may use all Emergency expires unless authorities expires unless currently authorized renewed by Governor. this requirement is waived emergency authorities. After initial response After extended period, by the Legislature. efforts, such as such as one year or more. a few months. If renewing, the Governor must Governor must use report on why renewal is After emergency is over, existing budget and necessary, which executive Governor must report on policy processes if orders are still needed, and actions taken, why the possible. why normal processes cannot emergency ended, spending be used. information, and any lessons learned. After renewal, Legislature must be notified before any new executive orders can be issued, unless this requirement is waived by the Legislature. Governor must use existing budget and policy processes if possible. www.lao.ca.gov 15 AN LAO REPORT Adopt Statute Specifying Governor Should should ideally occur after initial response efforts Not Use Emergency Authorities When Existing are largely complete, could be set in different ways, Processes Suffice. We recommend the Legislature such as: modify statute to specify that the Governor may • Renewing Each State of Emergency not use emergency authorities in cases where Separately at Specific Intervals. The normal budget and policy processes can be used Legislature could require that the Governor without negatively affecting response and recovery renew each state of emergency separately activities. For example, the Legislature could modify at specific intervals of time, such as every statute to explicitly state that the authorities granted 30 to 120 days, until the emergency is in CESA and CDAA do not provide an alternative terminated. Alternatively, the Legislature budget or policy process and that, whenever could require that the Governor renew each possible, proposals should be considered through state of emergency initially after a period of the annual state budget or other state legislation. time, such as 30 to 120 days, with the initial This would minimize the extent to which the renewal being required to specify when the Legislature must cede its core powers to the state of emergency will be terminated or Governor, including in time periods when states of reviewed again. emergency are in place. For example, if seeking • Renewing All Ongoing States of Emergency funds for specific emergency activities through the Simultaneously at Set Times Each Year. budget process would not interfere with response The Legislature could instead require that or recovery efforts, the Governor would be required the Governor renew all ongoing states of to do so. emergency simultaneously at set times of Require States of Emergency to Expire the year. For example, the Legislature could Unless Renewed by Governor at Specified require that the Governor review and renew all Time Periods. We recommend the Legislature ongoing states of emergency that have been revise CESA to establish a time period after which open for more than 60 days in January and states of emergency expire unless renewed by the July of each year. Governor. This would require the Governor to review states of emergency—and the corresponding The Legislature could consult with the executive orders that are being used—to determine Governor’s office, OES, local governments, and whether they need to remain in effect. After review, other practitioners and experts to determine a the Governor would then be required to renew reasonable time period and approach for renewing states of emergency that are deemed necessary. states of emergency. As part of the renewal, the Governor would be Require the Administration to Provide required to identify which executive orders are Certain Information Prior to Renewal. We still needed. Any executive orders not identified recommend that the review and renewal process as necessary would automatically expire. Going identified above be structured in a way that forward, any new executive orders that are needed enhances legislative oversight of the Governor’s could only be issued after advanced notification is use of emergency authorities. Specifically, we provided to the Legislature, unless the Legislature recommend the Legislature require the Governor to waives this requirement. This would maintain the provide advance notification prior to renewal that Governor’s flexibility to continue to utilize states of includes, at a minimum, the following information: emergency that need to remain in effect, but would (1) a description of how emergency authorities create an accountability mechanism that ensures and executive orders were used to address the that the Governor revisits the need for states of emergency to date, (2) an assessment of the emergency and related executive orders in a timely conditions that warrant keeping the emergency manner. It would also provide greater legislative open, (3) which executive orders are still needed oversight of the Governor’s use of executive to respond to the emergency and what actions the orders. The specific time period for renewal, which Governor expects to take, (4) why the Governor 16 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT needs to use those executive orders (rather than are subject to legislative review and approval. normal budget and policy processes) to undertake The Legislature could consult with the Governor’s response and recovery activities, (5) specific office, OES, and other emergency experts and conditions that need to be satisfied to terminate the practitioners to ensure that any such requirements state of emergency, and (6) anticipated dates for would not affect emergency response and recovery termination. The notifications should be provided activities and to identify a time frame that is to JLBC and the legislative committees whose generally sufficient for such activities to be more jurisdictions include emergency response: The well defined. This would ensure normal budget Assembly Committee on Emergency Management, and policy processes are used again as soon as the Senate Governmental Organization Committee, possible. We note that normal budget and policy and the Joint Legislative Committee on Emergency processes have been used to respond to ongoing Management. The amount of advanced notification emergencies previously. For example, rather than could vary depending on the time periods and continuing to use emergency spending authorities, approach for the renewal process we recommend Governor Newsom submitted many proposals for above. A shorter notification time frame, such as COVID-19-related emergency response spending 72 hours to a week, could be used for a shorter to the Legislature for consideration during the renewal period or for individual emergencies. A 2021-22 budget process. Similarly, initial funding for longer notification time frame, such as 30 days, responding to the January 2025 Southern California for a longer renewal period or for numerous wildfires was approved through normal budget emergencies. This time period would allow these and policy processes. These actions allowed the legislative committees to raise concerns with Legislature to exercise its core powers and provided the Governor’s plans identified in the report. For it much greater oversight of these proposals example, the committees could raise concerns with Allow for Waiver of Sunset in Certain the need for particular executive orders. Similar Circumstances. For particularly complex and to other existing legislative notification processes, extended states of emergency where conditions Governors could choose to ignore these concerns, are constantly changing after an extended period but seldom have in similar circumstances in of time, the Legislature could include a statutory the past. provision for the JLBC or the Joint Legislative Create Sunset for States of Emergency That Committee on Emergency Management to waive Are Open for an Extended Period of Time. this sunset requirement for a set amount of time so We recommend that the Legislature establish an that the Governor can continue to use emergency automatic sunset period for states of emergency authorities until response and recovery activities are after an extended period of time. This would create more well defined. Additionally, such waivers could a mechanism to ensure any authority needed to be used to facilitate the receipt of federal funds continue emergency response activities over an in cases were response and recovery efforts are extended period of time would go through the particularly extended. normal legislative budget and policy processes. For Require the Administration to Submit example, the Legislature could consider modeling a Report After Emergency Expires. We such guidelines after CDAA’s limitation on the use of recommend the Legislature require the DREOA funds generally through the end of the fiscal administration to submit a report to the Legislature year in which the first 120-day extension was made. after each emergency ends. This would enhance When applying this model to the Governor’s use of legislative oversight by providing the Legislature emergency authorities, the Legislature could revise with more information about how the Governor CESA to sunset states of emergency at the end of used emergency authorities. The Legislature could the fiscal year after which the state of emergency is require the reports to include, at a minimum, the proclaimed. Over this period of time, response and conditions that warranted ending the emergency recovery efforts would likely be more well defined, and the amount of actual expenditures, including and this process would ensure that ongoing actions state spending and federal reimbursements. www.lao.ca.gov 17 AN LAO REPORT The Legislature could also consider requiring other Implementing these recommendations will provide types of information be included that would be the Legislature with greater oversight of state helpful for informing approaches to future states of spending during emergencies and minimize the emergency, such as any lessons learned from the extent to which it must cede its core spending emergency activities. We note that this requirement powers. We also note that some of these is similar to an already existing requirement that recommendations could be incorporated into the OES complete ‘after-action reports’ within 180 days review and renewal process that we recommend after each declared disaster and provide such above. For example, the Legislature could require reports to interested public safety and emergency the administration to include information on planned management organizations. Accordingly, the new and actual emergency expenditures in the renewal report we recommend would likely not represent reports submitted to the Legislature. a significant increase in workload. Rather, it would Provide Additional Funding to Comply With build on existing reports to enhance the amount of New Requirements. We acknowledge the changes information provided directly to the Legislature. outlined above would create some new workload Reform Emergency Spending Authorities for the agencies involved in emergency response, to Enhance Legislative Oversight. The above such as OES. To ensure these requirements do not changes would be enhanced by the Legislature negatively impact the state’s ability to respond to also implementing the recommendations from our and recover from emergencies, we recommend 2021 report on the Governor’s emergency spending that the Legislature provide additional funding to authorities. Specifically, we recommended support this new workload. We estimate the cost (1) requiring all emergency augmentations come of this workload would be unlikely to exceed a few from DREOA, (2) establishing an amount for million dollars annually. However, the Legislature DREOA in the budget, (3) requiring advanced could work with the administration to get a notice to transfer additional funds into DREOA, more precise estimate of the amount of funding and (4) requiring reporting on planned and actual necessary. In our view, the benefits of additional emergency expenditures. (We provide more detail legislative oversight of broad emergency authority on these recommendations in the nearby box.) outweigh these relatively modest costs. CONCLUSION While the state must have flexibility to respond that, under the current structure, the mechanisms to emergencies, it is also critical for the Legislature in place for the Legislature to conduct oversight of to maintain and exercise its core constitutional the Governor during emergencies are somewhat powers. This is necessary to maintain the limited. Setting aside whether Governors have balance of powers fundamental to the structure abused this flexibility or lack of transparency to of California’s constitution, which has been put in date, it remains possible that such abuse could place to ensure that one branch of government is occur in the future. Accordingly, we recommend not able to exercise its powers at the expense of modifying these laws in ways that would better another. We find that current emergency laws lean balance the Governor’s need for flexibility with the more heavily toward flexibility than necessary in Legislature’s right to retain its core powers and some cases. This is particularly concerning given exercise oversight during and after emergencies. 18 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT Improving Legislative Oversight of Emergency Spending Authorities In our report, the 2021-22 Budget: Improving Legislative Oversight of Emergency Spending Authorities, we recommended that the Legislature make fundamental changes to the Governor’s overall emergency spending authorities, as outlined below. Require All Emergency Augmentations Come From the Disaster-Response Emergency Operations Account (DREOA). In order to ensure that emergency spending augmentations authorized under the California Emergency Services Act (CESA) and DREOA are tracked and follow the same requirements for legislative notification and reporting, we recommended that the Legislature require all emergency augmentations come from DREOA. Under this recommendation, the Governor could still redirect any legally available state funds to emergency response-related activities through CESA. However, these funds would first have to be deposited into DREOA. (We recommended additional oversight mechanisms for the Governor’s authority to transfer funds into DREOA below.) Having all emergency augmentations coming from the same account would ensure that a consistent process governs all emergency augmentations. Establish an Amount for DREOA in the Budget. In order to (1) ensure that the Governor can access a reasonable amount of funding for emergencies, (2) give the Legislature input into the level of funding available for emergency expenditures, and (3) minimize the chance that emergency spending will undermine the state budget structure or condition, we recommended establishing the total initial level of funding authorized each year for emergencies in the state budget. This amount would be budgeted in DREOA with the funds available to the Governor to respond to emergencies. As we discuss below, the Governor would only be authorized to augment departmental budgets from the account by notifying the Legislature when such allocations are made. Require Advanced Notification to Transfer Additional Funds Into DREOA. In some years, the Governor may need to exceed the amount of emergency funding budgeted in DREOA. In order to maintain this flexibility—while also ensuring the Legislature is involved in spending decisions that could impact the overall structure of the state budget—we recommended that the Legislature require advanced notification before additional funds can be transferred into DREOA, including when funds are deposited into DREOA using CESA authority. The notifications should be provided to the Joint Legislative Budget Committee (JLBC), since most midyear budget changes and current DREOA notifications go through JLBC. The amount of advanced notification and the information provided to the Legislature could vary depending on different factors. For example, the Legislature could: • Establish Shorter Notification Period for Smaller Transfers Tied to Ongoing Emergencies. Transfers below a specified dollar threshold that are tied to ongoing emergencies and are accompanied by details on how the funds would be spent could have a shorter notification time frame, such as 72 hours. (The dollar threshold could be established in consultation with the administration based on historical emergency spending needs.) This is because such transfers would have less significant budgetary implications. Moreover, the required details on how the funds would be spent allows the Legislature to effectively evaluate the request in a shorter time frame. In addition, given that the emergency would be ongoing in such a circumstance, the need for funds could be urgent. www.lao.ca.gov 19 AN LAO REPORT Continued... • Establish Longer Notification Period for Larger Transfers or Transfers Made Proactively Before Emergencies. In other cases, the Governor may want to transfer large sums into DREOA if the balance becomes low or there is a known risk of potential emergencies. In this case, a longer notification period would be warranted, such as 30 or 45 days, to allow the Legislature to conduct more oversight of the transfer and its budgetary implications. For example, the Legislature could hold an oversight hearing within this longer time frame. • Allow Waiver of Notification Time Frame in Urgent Circumstances. If the Governor found it necessary to transfer funds to respond urgently to protect lives or property, a process could be established to allow the Governor to request a waiver to shorten the time frame specified for advanced notification. For example, the administration could request JLBC to waive the 72-hour notification time frame mentioned above if there was sufficient urgency, such as to address immediate threats to people or property. If JLBC approved a waiver of the time frame, the administration would be able to transfer the funds immediately, or after a shortened time frame specified by JLBC. Require Reporting on Planned and Actual Emergency Expenditures. In order to ensure that the Legislature has complete information on emergency spending, we recommended the Legislature require the Department of Finance to provide regular emergency expenditure reports. For each emergency-related activity, the reports should show, at a minimum, all planned and actual emergency spending by state entities, including expenditure of funds allocated from DREOA, federal funds, and private funds, as well as the expenditure of funds budgeted for emergency response or redirected within departmental budgets to respond to an emergency. This information should include a description of the specific activities funded. This would provide the Legislature—and the public—with the information necessary to conduct oversight of how the Governor spends funds during emergencies. LAO PUBLICATIONS This report was prepared by Drew Soderborg and Jared Sippel, and reviewed by Ross Brown. The Legislative Analyst’s Office (LAO) is a nonpartisan office that provides fiscal and policy information and advice to the Legislature. To request publications call (916) 445-4656. This report and others, as well as an e-mail subscription service, are available on the LAO’s website at www.lao.ca.gov. The LAO is located at 925 L Street, Suite 1000, Sacramento, California 95814. 20 LEGISLATIVE ANALYST’S OFFICE