An Act to Enhance Legislative Participation in the Governor's Use of Emergency Powers
Maine Legislature, Session 131, LD 1876
Committee: State and Local Government
Sponsors: LEE, KEIM, ARATA, BRADSTREET, DANA, LOOKNER, SHAW, WARREN, WHITE, BENNETT
Amends: 37-B MRSA §741, 37-B MRSA §742, 37-B MRSA §743

Legislative Document
No. 1876
H.P. 1201
House of Representatives, May 3, 2023
An Act to Enhance Legislative Participation in the Governor's Use 
of Emergency Powers
Reference to the Committee on State and Local Government suggested and ordered printed.
ROBERT B. HUNT
Clerk
Presented by Representative LEE of Auburn.
Cosponsored by Senator KEIM of Oxford and
Representatives: ARATA of New Gloucester, BRADSTREET of Vassalboro, DANA of the 
Passamaquoddy Tribe, LOOKNER of Portland, SHAW of Auburn, WARREN of Scarborough, 
WHITE of Waterville, Senator: BENNETT of Oxford.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  37-B MRSA §741, as amended by PL 2013, c. 146, §§9 to 12, is further 
amended to read:
§741.  Governor's powers
1.  Control during emergencies.  In the event of disaster beyond local control, the 
Governor may assume direct operational control over all or any part of the emergency 
management and public safety functions within the State.
2.  Cooperation.  In performing the duties required by this chapter, the Governor shall, 
directly or through the commissioner, cooperate with all departments and agencies of the 
Federal Government, with the offices and agencies of other states and foreign countries and 
their political subdivisions and with private agencies in all matters pertaining to the 
emergency management capability of the State and of the Nation.
3.  Authority.  In performing the duties required by this chapter, the Governor, in direct 
consultation with the Legislative Council, may:
A.  Make, amend and rescind the necessary orders and rules to carry out this chapter 
within the limits of the authority conferred upon the Governor and not inconsistent with 
the rules, regulations and directives of the President of the United States or of any 
federal department or agency having specifically authorized emergency management 
or homeland security functions;
B.  Prepare a comprehensive plan and program for the emergency management 
functions of this State.  That plan and program must be integrated into and coordinated 
with the emergency management plans of federal agencies and with the plans of other 
states and foreign countries, and their political subdivisions, to the fullest possible 
extent;
C.  Coordinate the preparation of plans and programs for emergency management 
functions by the political subdivisions of the State.  These plans must be integrated into 
and coordinated with the emergency management plan and program of the State to the 
fullest possible extent;
D.  In accordance with the plan and program for the emergency management functions 
of the State, and consistent with the emergency management and homeland security 
plans, programs and directives of the Federal Government, procure supplies and 
equipment, institute training programs and public information programs and take all 
other preparatory steps, including the partial or full mobilization of emergency 
management organizations in advance of actual disaster or catastrophe, to ensure the 
furnishing of adequately trained and equipped forces of emergency management 
personnel in time of need;
E.  Conduct studies and surveys and take inventories of the industries, resources and 
facilities of the State necessary to ascertain the State's emergency management 
capabilities, and plan for their most efficient emergency use, including emergency 
economic controls to ensure adequate production and equitable distribution of essential 
commodities;
F.  Whenever a shortage of critical material supplies appears imminent in the State, 
establish emergency reserves of those products necessary to ensure the health, welfare 
and safety of the people of the State.  To establish those reserves, the Governor may 
purchase quantities of those materials for resale on a cost plus expenses basis for 
priority end users within the State;
G.  On behalf of the State, enter into mutual aid arrangements with other states and 
foreign countries, and their political subdivisions, and coordinate mutual aid plans 
between political subdivisions of the State.  If an arrangement is entered into with a 
jurisdiction that has enacted the Emergency Management Assistance Compact, chapter 
16, or the International Emergency Management Assistance Compact, chapter 16‑A, 
any resulting agreement or agreements may be considered supplemental agreements 
pursuant to those compacts.  If the other jurisdiction or jurisdictions with which the 
Governor proposes to cooperate have not enacted one of those compacts, the Governor 
may negotiate special agreements with the jurisdiction or jurisdictions.  Any 
agreement, if sufficient authority for its making does not otherwise exist, becomes 
effective only after approval by the Legislature;
G-1.  Establish and ensure maintenance of a primary facility designated as the State 
Emergency Operations Center from which the emergency coordination of response to 
and recovery from a disaster may be effectively carried out and ensure the identification 
of an alternate site that may be used for this purpose if necessary; and
H.  Delegate any authority vested in the Governor under this chapter and provide for 
the subdelegation of that authority.
In carrying out the duties of this section, the Governor shall narrowly tailor the 
Governor's actions to address the public health or safety emergency to which the actions 
are directed while limiting the extent to which the actions deviate from the actions that 
would be permissible in the absence of a declared emergency.
The Maine Superior Court has jurisdiction over cases brought by individuals adversely 
affected by actions taken pursuant to this section, and shall determine in such matters 
whether the Governor’s actions are sufficiently narrowly tailored. Pursuant to the Maine 
Rules of Civil Procedure, Rule 65, the court may provide for a temporary restraining order 
or preliminary injunction in those cases. In the event a temporary restraining order or 
preliminary injunction is issued against the Governor's action or actions pursuant to this 
section, an appeal by the Governor of the order or injunction to the Maine Supreme Judicial 
Court must be expedited.
Sec. 2.  37-B MRSA §742, sub-§1, as amended by PL 2021, c. 28, Pt. C, §1, is 
further amended to read:
1.  Emergency proclamation.  Emergency proclamations must be issued as follows.
A.  Whenever a disaster or civil emergency exists or appears imminent, the Governor 
shall, by oral proclamation, declare a state of emergency in the State or any section of 
the State.  If the Governor is temporarily absent from the State or is otherwise 
unavailable, the next person in the State who would act as Governor if the office of the 
Governor were vacant may, by oral proclamation, declare the fact that a civil 
emergency exists or appears sufficiently imminent to activate emergency plans in any 
or all areas of the State.  A written copy of the proclamation must be filed with the 
Secretary of State within 24 hours of the oral proclamation.
B.  Subject at all times to the further direction and order of the Governor, an executive 
proclamation of emergency activates the emergency plans applicable to the affected 
areas and is the authority for the deployment and use of any forces or resources to 
which the plan or plans apply.
C.  After the filing of the emergency proclamation and in addition to any other powers 
conferred by law, the Governor, in direct consultation with the Legislative Council, 
may:
(1)  Suspend the enforcement of any statute prescribing the procedures for conduct 
of state business, or the orders or rules of any state agency, if strict compliance 
with the provisions of the statute, order or rule would in any way prevent, hinder 
or delay necessary action in coping with the emergency;
(2)  Utilize all available resources of the State Government and of each political 
subdivision of the State as reasonably necessary to cope with the disaster 
emergency;
(3)  Transfer the direction, personnel or functions of state departments and 
agencies, or units thereof, for the purposes of performing or facilitating emergency 
services;
(4)  Authorize the obtaining and acquisition of property, supplies and materials 
pursuant to section 821;
(5)  Enlist the aid of any person to assist in the effort to control, put out or end the 
emergency or aid in the caring for the safety of persons;
(6)  Direct and compel the evacuation of all or part of the population from any 
stricken or threatened area within the State, if the Governor determines this action 
necessary for the preservation of life or other disaster mitigation, response or 
recovery;
(7)  Prescribe routes, modes of transportation and destinations in connection with 
evacuations;
(8)  Control ingress and egress to and from a disaster area, the movement of persons 
within the area and the occupancy of premises therein;
(9)  Suspend or limit the sale, dispensing or transportation of alcoholic beverages, 
explosives and combustibles;
(10)  Make provision for the availability and use of temporary emergency housing;
(11)  Order the termination, temporary or permanent, of any process, operation, 
machine or device which may be causing or is understood to be the cause of the 
state of emergency for which this proclamation was made;
(12)  Take whatever action is necessary to abate, clean up or mitigate whatever 
danger may exist within the affected area; and
(13)  During a state of emergency declared by the Governor in accordance with 
this section due to the outbreak of COVID-19:
(a)  Reasonably adjust time frames and deadlines imposed by law for state, 
county and municipal governments and other entities when such an adjustment 
is reasonably necessary to mitigate an effect of the emergency;
(b)  In consultation with the Public Utilities Commission, suspend the 
termination of residential electricity and water services during the period of 
emergency and up to 60 days after the state of emergency is terminated; and
(c)  Modify or suspend the requirements for professional or occupational 
licensing or registration by any agency, board or commission if strict 
compliance with such requirements would in any way prevent, hinder or delay 
necessary action in dealing with the emergency.
The powers granted in divisions (a) and (c) terminate 30 days following the 
termination of the state of emergency.
E.  In dealing with a declared state of emergency under this subsection, the Governor 
shall ensure that:
(1)  Medical privacy and confidentiality requirements, including but not limited to 
requirements under the federal Health Insurance Portability and Accountability Act 
of 1996, are followed; and
(2)  Health care services and surgeries are not considered to be nonessential 
services.
F.  The Governor, during the pendency of a state of emergency, may not reissue or 
renew an emergency proclamation, issue another emergency proclamation that is 
substantially similar to one that expired or reissue an emergency proclamation 
terminated by the Legislature without approval of the Legislature.
G.  The Governor, during the pendency of a state of emergency, shall provide a detailed 
written weekly briefing to the Legislative Council. At minimum, the briefing must 
detail all actions taken pursuant to this section and, with respect to such actions, must 
detail how and whether the actions have been successful in abating the public health or 
safety emergency. Compliance with this section does not by itself satisfy the 
Governor's obligations to directly consult the Legislative Council when acting pursuant 
to this section, when applicable.
Sec. 3.  37-B MRSA §743, sub-§2, as enacted by PL 1983, c. 594, §34, is amended 
to read:
2.  Limitation.  No As long as each House of the Legislature is able to assemble either 
in person or remotely as authorized by a joint order passed by the Legislature, a state of 
emergency may not continue for longer than 30 days unless it is renewed by the Governor 
a 3/5 vote of each House of the Legislature.  If either House of the Legislature is unable to 
assemble within 30 days, it shall take a renewal vote as soon as practicable. If the state of 
emergency is not renewed following a vote by the Legislature, the Governor shall issue an 
executive proclamation ending the state of emergency within 24 hours of the vote not 
renewing the state of emergency.  The Legislature, by joint resolution, may terminate a 
state of emergency at anytime any time by the vote of a majority of each House of the 
Legislature.  Thereupon, the The Governor shall then issue an executive proclamation 
ending the state of emergency.
SUMMARY
This bill:
1. Requires that the Governor, in performing the Governor's duties related to 
emergency management functions and emergency powers, consult directly with the 
Legislative Council;
2. Requires the Governor to narrowly tailor actions to address the public health or 
safety emergency;
3. Provides that the Maine Superior Court has jurisdiction over cases brought by 
individuals adversely affected by actions taken pursuant to the Governor's emergency 
powers.  The Governor may appeal to the Maine Supreme Judicial Court and that appeal 
must be expedited;
4. Prohibits the Governor from reissuing or renewing an emergency proclamation, that 
is substantially similar to one that expired or was terminated by the Legislature, without 
Legislative approval;
5. Requires the Governor, during a state of emergency, to provide a detailed written 
weekly briefing to the Legislative Council detailing actions taken to address the 
emergency; and
6. Provides that, as long as each House of the Legislature is able to assemble, a state of 
emergency may not continue for longer than 30 days unless it is renewed by a 3/5 vote of 
each House.