After the Utah Legislature refused to extend an expiring state of emergency for the COVID-19 pandemic, Gov. Gary Herbert on Thursday issued a new emergency declaration himself.
That is needed to allow dealing quickly with issues arising from COVID-19, he said, and to avoid the possibility of losing hundreds of millions of dollars of federal emergency relief.
“We’re not out of the woods yet on this pandemic,” Herbert said at his monthly news conference at PBS Utah. “People are still dying. The infection rates are still too high and growing.”
On Thursday evening, he issued a series of seven executive orders to replace some — but not all — earlier orders that expired at midnight.
Legislators had declined to extend the current state of emergency amid calls and emails from some constituents who argued that drawing out such a status for months distorts the intent of state law. They say long-term emergency orders hurt businesses and have forced actions they dislike, such as forcing schoolchildren to wear masks.
“These [emergency] powers were never contemplated to span months or longer,” House Speaker Brad Wilson, R-Kaysville, said Wednesday.
The governor disagreed that emergencies are only short term and said that state law includes epidemics in its list of possible emergencies — and they are longer term.
He added that pandemics by nature are unpredictable, and the state needs the ability to respond quickly to developments to ensure the health care system is not overwhelmed with another surge, and to handle problems that may come as children return to school.
“If we were not to do this, we would be the only state of the 50 that would not have an emergency declaration in place for our state during this pandemic,” the governor said.
Without another emergency declaration, he said, the state risks losing federal emergency aid.
“At the top of that list is the funding for our National Guardsmen. We’ve been doing a lot of work and testing and contacting and tracing of those who have the virus now,” he said. “That’s a $13 million to $14 million bill the federal government is helping us to pay under the current state of emergency.” Also at risk without action, he said, is emergency money for the health department, $445 million in assistance for lost wages, and Small Business Administration loans.
“The list goes on and on,” he said.
The governor’s statements seemed to contradict what Republican lawmakers said a day earlier. Rep. Jacob Anderegg, R-Lehi, who first announced the Legislature’s decision not to extend the emergency declaration, said executive branch warnings about loss of federal funding were, by and large, untrue.
“So if you are told by anyone in an executive agency that $114 million might be in jeopardy or $250 million for unemployment insurance, the answer is unequivocally no. Those monies can and will continue.”
Anderegg did allow that the governor might need to issue a new declaration to avert the loss of federal assistance for the Utah National Guard.
Lawmakers had contemplated changes to the state’s Emergency Management Act that would have scaled back some of the governor’s authority, but they pulled the proposal from the special session agenda. Anderegg said while they probably had the votes to pass amendments, they didn’t believe they would have the majorities needed to override a veto.
The governor expressed some frustration with people who fight emergency actions such as ordering that students and teachers wear masks at schools — saying studies show that is the best way to protect them until a vaccine is developed.
“I know people have a strong emotion about this. Sometimes I don’t know I understand what seems to be a little bit irrational,” he said. “All we’re trying to do is help create a safe environment. I guess these same people get on an airplane and say, ‘I’m not going to fasten my seat belt.‘”
Still, Herbert said, he values discussion with people from all points of view. “Once you get everybody around the table and get their input, it does help us to sort through the positions that people are taking and hopefully come up with a correct best position.”
Herbert declined to predict whether he will issue yet another emergency declaration in a month, when his new one will expire.
“I don’t know what’s going to happen in 30 days,” he said. “There are legitimate issues as far as what are the powers when you have a sustained long-term emergency like a pandemic.”
He said he and the Legislature will work that out.
Wilson, the House speaker, expressed support Thursday for the governor’s decision to declare a new state of emergency, saying that the new orders are fairly limited in nature.
“They’re pretty innocuous,” he told reporters. “But they also allow us to draw down federal funds, whether it’s the National Guard or health departments or otherwise.”
He said legislative leaders have had “very collaborative” discussions with the governor’s office about his emergency powers.
Wilson intends to revisit the state’s emergency powers code during the general session, when there’s plenty of time to consider any changes. (There also will be a new governor because Herbert is not seeking reelection.)
Included in the executive orders that Herbert issued Thursday evening, which take effect immediately through Sept. 21, are:
• Declaring a state of emergency due to the ongoing COVID-19 pandemic.
• Reissuing an executive order temporarily suspending access to Utah Board of Pardons and Parole hearings.
• Reissuing an executive order suspending provisions of the Utah Postretirement Reemployment Restrictions Act.
• Reissuing an executive order ordering suspension of certain retail licensees that closed or ceased operation on or after March 15.
• Reissuing an executive order suspending enforcement of statutes relating to telehealth services.
• Updating an executive ordering requiring the wearing of masks in all state-run buildings. It allows face coverings or face shields.
• Reissuing an executive order adopting version 4.10 of the coronavirus phased guidelines and declaring restriction levels.
A separate order requiring masks in schools was not expiring Thursday and will continue.