Executive Authority During Energy Emergencies

What is an energy emergency?

An energy emergency, such as an electrical grid outage, pipeline disruption, or fuel shortage, occurs when an actual or imminent severe energy supply interruption threatens the health, safety and well-being of a population. ‘Energy emergency’ for many states may be a specific designation. Governors have the authority to declare an energy emergency that is distinct from the state’s other options for declaring emergencies in at least 14 states. An energy emergency may be stand-alone or concurrent with a broader declared emergency such as a natural disaster (See Appendix D. Examples of Authorizing Legislation for Governor-Declared Energy Emergencies for details).

For more information on Governors’ powers and authority see: https://www.nga.org/governors/powers-and-authority/

What are the possible consequences of an energy emergency?

Each energy emergency is unique. Different consequences necessitate different gubernatorial action and the appropriate response to these considerations will scale based on the severity of the emergency. Table 1 provides a list of actions that Governors and their key advisors should consider:

• These actions are listed by increasing severity and roughly correspond to an incident’s size and scope.
• The table is not holistic; rather, it covers the most notable consequences. Because all events and emergencies are unique, NGA suggests using this table as a decision-making guide in conjunction with the recommendations of state and local authorities.

Gubernatorial authority may include:

Declaration of emergency: A common tool that governors execute when the state experiences a natural or manmade event. Governors generally have discretion to issue emergency declarations for a period of time through specific statutory authorizations or constitutional powers.

• Duration: Governors should be aware of the legal authorization in their state pertaining to the length and latitude of an emergency declaration, whether it be ongoing until rescinded, effective for a specific period unless extended, or valid only for a certain period and then requiring coordination with the legislative branch for subsequent action.
• Legislature: In some states, legislatures can review, extend, or terminate a state of emergency or participate in subsequent gubernatorial extensions and otherwise modify the emergency declaration through concurrence votes or ratification of a Governor’s proposed extension.

Request for Federal Assistance: Governors can also request a federal emergency or disaster declaration under the Stafford Act to bring federal resources to bear on a declared state of emergency. Governors will coordinate with FEMA regional directors to develop a preliminary disaster assessment to support the request to the President for federal declaration.

Declaration of an energy emergency: A more specific tool that some Governors possess that focuses on the energy sector in the Governor’s authority rather than a traditional emergency declaration. Importantly, the statutory authorities for an energy emergency may be different for a standard state of emergency and, in some cases, more expansive. Much of this information will be codified in the state or territory’s energy assurance plan.

Typically, Governors will declare an energy emergency after the triggering event. However, they may have the authority to declare an emergency or request federal declaration of a major disaster before the event occurs if there is an imminent threat or impact to citizens (such as a major hurricane). The Governor can make this declaration to ensure that energy and emergency response personnel, equipment and goods are in place and ready to be deployed and to secure direct federal assistance or waivers. While state emergency declarations facilitate response and restoration, a Governor may have state statutory limits on the length of a declared emergency. In those cases, the Governor will need to engage other governmental branches if an extension is needed and the statute requires legislative or other approval. Energy and disaster declarations are useful to facilitate and streamline emergency response and avail the state to federal funding. However, where pertinent Governors may also balance considerations of potential negative responses or outcomes, such as whether public fuel panic purchasing may be exacerbated by the formal declaration of an emergency.

As part of their emergency preparations, Governors may wish to conduct an assessment of their current emergency powers in the context of an energy emergency. As necessary, Governors can bolster their responses to energy emergencies in the following ways:

• Propose legislation for new energy-specific powers,
• Establish processes for activating relevant authorities in response to an energy emergency, and
• Coordinate with emergency managers to ensure clear lines of authority and responsibility during energy emergencies.

Governors should also understand the level to which emergency or energy emergency response depends on coordination with and action from other jurisdictions and the private sector:

Federal government: For example, the U.S. Department of Transportation (USDOT), Environmental Protection Agency (EPA) and other agencies may waive certain regulations and in the event of a state emergency declaration, such as hours of service (HOS) and safety waivers for trucking governed by the Federal Motor Carrier Safety Administration (FMCSA). Officials should know how state and federal emergency declarations affect regulations to maximize their recovery capacity.

Private sector and utility companies: Utilities often depend on their peers across the country connected through mutual aid agreements. Under those agreements, utilities share trucks, work crews and equipment with one another to more rapidly recover from outages. For larger response events, work crews and equipment are often required to drive across state boundaries.

Neighboring states: Governors should understand how neighboring states will respond during an emergency declaration and whether they can work with their peers to create agreements that facilitate industry and governmental response. If an emergency has been declared and certain restrictions are waived within a state, that waiver’s authority may end at the state’s border. Restrictions may still be in place in neighboring states that limit the ability of crews to move and respond. In addition, a state of emergency that the federal government or another state government declares may waive some restrictions in unaffected states for motor carriers and work crews traveling interstate in response to the emergency. Governors should be familiar with and enforce those exemptions to expedite response and recovery efforts in other jurisdictions. Emergency management and state police should coordinate with neighboring jurisdictions, national coordination mechanisms, and local law enforcement to communicate regulatory waivers and other actions to expedite response.

Building relationships in advance, including developing robust contact lists for the key state, local, federal, and energy sector partners who may need to be called upon during an emergency, can improve and accelerate energy emergency response and restoration.

Collaborative emergency response exercises, whether held at the state level or nationally with the federal government or energy sector, can be effective tools to assess planning, emergency authority, and coordination gaps and ensure the state and its partners are prepared for a potential energy emergency.

Consequences of the emergency: What is the impact? Was the impact limited to the electric or fuels sector, or were there cascading effects in other sectors? Has infrastructure been compromised that will hinder recovery efforts?

Geographic impact: How widespread is the emergency? Is it limited to one utility service territory or several? Can the state map the affected critical assets and layer those geographic data over utility outage data? Does the outage cross state lines? If so, will the state be competing with other states for resources?

Affected population: Whom does the energy emergency affect? Are the customers primarily in the residential sector, the commercial sector, or a combination? Does the event affect multiple utilities, and if so, how many and to what degree? Are neighboring states affected? What are the critical, lifeline assets affected, and what impact will their outages have on the health and safety of residents, in particular disadvantaged populations?

Outage duration: How long will the energy emergency last? Will power be out for hours, days, weeks, or longer? Is there sufficient access to backup generation? Do backup generators have an adequate stock of fuel to continue to operate throughout the duration of the outage? Can other utilities, such as water, wastewater and telecommunications, continue to operate through the outage? Which private sector entities need to be engaged to estimate the duration and impacts of the outage resulting from the event? Depending on the duration of the emergency, what powers does the Governor have to implement restoration actions after the event?

When the scope, scale and recovery needs of the emergency have been determined, it is critical to assess the existing regulations and restrictions that will impede recovery and response efforts and consider the following actions:

Transportation Actions
» Suspension of carrier rules (for example, HOS, road weight restrictions, the need to stop at weigh stations)

» Toll waivers for utility and emergency response crews

» Access and credentialing:

• Site access restrictions
• Volunteer access and credentials
• Out-of-state access and credentials
• Equipment and supply access

Economic Actions

» Fuel rationing:

• Priority access for emergency personnel and utility crews
• Rationing for the public in times of shortage

» Seizure of or regulation of critical energy emergency response supplies such as fuel stocks or infrastructure or personal protective equipment and appropriate compensation for actions constituting a taking

» Protections against price gouging

Environmental Actions

» Pollution control regulations:

• By waiving certain fuel standards, the federal government can ensure that an adequate supply of fuel is available, especially for emergency operations and the lifeline sectors.[ 8 ] Governors should consider any risks or potential unintended consequences associated with a given waiver to ensure the waiver issued or requested suitably balances response facilitation and risk protection.
• Additional pollution control regulations:
• Suspend permitting and other restrictions for air emissions and wastewater discharge.
  • –Suspend inspections of retail fueling stations

Governors have a few options for how to act in the event of an energy emergency:

Formal action:

• Declare a state of emergency or an energy emergency (if the Governor has that authority).
• Activate State Emergency Operations Center.
• Issue an executive order, proclamation or other, equivalent executive directive.
• Issue related response-enabling executive orders like suspensions of identified economic, environmental or transportation regulations as described in Step Two.
• Request federal assistance if needed. If a Governor requests a federal emergency declaration to unlock federal resources under the Stafford Act, FEMA requires a damage assessment outlining the nature and extent of state resource exhaustion.

Informal action:

• Partially or “soft” open an emergency operations center so personnel can monitor conditions in a partially activated state, even if a full emergency declaration has not yet been issued.
• Issue public service announcements.
• Work with unaffected states or establish interstate coordination including to ensure energy workers have sufficient credentials or waivers to travel freely, access necessary facilities, and assist in restoration without interruption.
• Leverage relationships with state officials, other Governors, businesses, etc.
• Work with the media to provide timely public updates and guidance. Coordinate public messaging with industry.
• Delegate responsibility to state agencies.

No action:

• Although this road map focuses heavily on Governors’ use of executive action, some events may not warrant an emergency declaration.
• In this instance, Governors should continue to monitor the situation and determine whether they need to reevaluate the state’s role in response and recovery if the circumstances change.

DOE Energy Waiver Library

During energy emergencies, alleviating regulatory restrictions through waivers can expedite response and restoration and avoid delays. Temporarily forgoing enforcement of certain safety, environmental and statutory requirements, when appropriate, can accelerate response efforts, restoring power and moving fuel more quickly to affected citizens. The Department of Energy’s Energy Waiver Library gathers, categorizes, and illustrates energy sector waivers of regulation and standards from across six granting agencies. The library clarifies special permits or waived enforcement of requirements for generation, fuel use, fuel transportation and distribution, and clean up and event recovery. This central location includes background on the energy response waiver or special permit, examples of past use, links to previously issued waivers, and an appropriate point of contact from whom to request such waivers should the need arise. Access the Energy Waiver Library at: https://www.energy.gov/ceser/energy-waiver-library

Interstate coordination through mutual aid agreements and waiver exemptions:

• Emergency Management Assistance Compact (EMAC), which is a mutual aid agreement among the 50 states, the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands that enables the sharing of personnel, equipment and commodities to states impacted by disasters.
  • — Governors have invoked the EMAC during major weather events such as Hurricanes Harvey, Irma, and Maria in 2017, wildfires in 2020 and 2021, and Hurricane Ida in 2021, as well as in response to critical energy infrastructure incidents such as the Colonial Pipeline cybersecurity incident in 2021.

• Energy Utility mutual assistance agreements facilitate service restoration by providing restoration workers and logistics coordination across utility service territories. These include:
  • — Regional Mutual Assistance Groups (RMAG) are regional groups that coordinate mutual aid assistance among investor-owned electric utilities within an affected region.
  • — Mutual assistance for public power utilities is coordinated through the American Public Power Association’s (APPA) Utilities Mutual Aid Regions. In addition, a national APPA and National Rural Electric Cooperative Association (NRECA) mutual aid agreement is in place for more than 2,000 public power and rural electric cooperative utilities.
  • — NRECA member electric cooperatives also coordinate mutual assistance through statewide cooperative associations.
  • — The natural gas sector coordinates mutual aid through the American Gas Association Mutual Assistance Program.
  • — The electric power and natural gas industries, collaborating through the Electricity Subsector Coordinating Council (ESCC), instituted a Cyber Mutual Assistance Program that facilitates the timely exchange of industry cybersecurity expertise in advance of or during a cyber-attack disrupting service. More than 170 energy companies participate, serving about 80 percent of U.S. electricity customers and 75 percent of domestic natural gas customers.

• Work with unaffected and neighboring states to ensure they have the necessary transportation waivers in place to allow utility mutual assistance crews to quickly reach the affected state.

• Intrastate coordination between state and local agencies as well as those agencies that are outside of emergency management, such as:
  • — State energy offices and utility regulators to coordinate with the electric sector, including the state ESF-12 lead, which is typically housed under the state energy office or public utility commission. Governors are advised to identify who their state’s ESF-12 lead is in advance of an emergency.
  • — State energy and homeland security agencies and advisors to respond to energy events threatening state security, such as cyberattacks against critical infrastructure.
  • — State departments responsible for weights and measures, as they may have information about transportation fuel availability,
  • — State environment departments to issue fuel and other relevant waivers,
  • — State departments of transportation to issue or request transportation waivers, including temporarily lifting toll and weigh station requirements for responding utility crews.

• Ensure that transportation waivers are left in place long enough to allow work crews providing mutual assistance to return.
• Private sector coordination, including energy and utility companies. Work with critical facilities and infrastructure operators to assess and address backup generation and restoration needs.
• Non-governmental coordination (for example, volunteers.)

Create a communications plan

Communication is key to ensuring that the public and all parties involved are aware of the current state of affairs.

Governors should incorporate the following components into any energy emergency public communications plans:

Identify communication methods:

• Identify a clear communication chain that includes the energy sector for any message coordination needs.
• Identify communications technologies that can operate reliably in the event of an energy emergency, including backup technologies.

Tailor the message that Governors or their representatives send to stakeholders:

• Coordinate and unify the message with the private sector and the federal government.
• Ensure that information provided aligns with public records laws and does not disclose sensitive critical energy infrastructure information (CEII.) For more information about protections for CEII, see: https://www.nga.org/wp-content/uploads/2019/05/CEII-Paper-June-2019-Revised.pdf

Spread the message:

• Leverage the state’s Joint Information Center to coordinate public and media messaging.
• Use social media and trusted local organizations such as NGOs and community partners to communicate publicly and combat misinformation.
• Use a combination of digital and traditional communications methods to ensure that those without broadband service receive important communications.
• Issue communications in multiple languages to keep them broadly accessible.