On March 13, 2020, President Donald Trump declared a national emergency in response to the COVID-19 (commonly referred to as coronavirus) pandemic. In doing so, he relied on provisions in the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121-5207) and the National Emergencies Act (50 U.S.C. 1601 et seq.). This declaration unlocked federal government resources to enable state, local and tribal governments to implement services and other measures to address the effects of the pandemic. As the first line of defense in times of disasters and emergencies providing essential services to their communities, local governments can access resources made available as a result of President Trump’s declaration.
The Stafford Act allows the president to declare either a “major disaster” or an “emergency” in order to provide needed assistance to state and local governments. President Trump declared an “emergency” but also indicated that he believed the pandemic met the Act’s definition of a “major disaster,” which previously had been limited to specific types of natural disasters (e.g., hurricanes, floods, droughts, tornados) listed in the law. Prior to this, only President Bill Clinton had invoked the Stafford Act to address a disease outbreak — the West Nile virus outbreak in New York and New Jersey in 2000.
President Trump’s declaration also relied on the 1976 National Emergencies Act, which authorizes the president to invoke special powers contained in more than 100 other provisions of law.
Stafford Act Provisions for Local Governments Under an ‘Emergency’ or ‘Major Disaster’
Under one of the three major categories of aid under the Stafford Act, local governments (along with state and tribal governments and certain private nonprofit public assistance organizations) are generally eligible for aid provided through the Federal Emergency Management Agency (FEMA) for various types of projects, including:
- Repair, reconstruction and replacement of infrastructure and recreational facilities.
- Emergency protective measures.
- Emergency communications.
- Transportation, as well as loans to replace lost revenue or meet federal cost-sharing requirements.
Specific assistance activities for local, tribal, and state governments — as well as certain public assistance non-profits — that are explicitly covered under a Stafford Act “emergency” or “major disaster” declaration, include:
- Activities to support local emergency assistance.
- Technical and advisory assistance to local governments.
- Aid for victims provided through local governments.
- Repair, restoration, and replacement of damaged facilities.
- Crisis counseling assistance and training grants.
- Community disaster loans for lost tax or other revenues necessary to support services.
- Debris removal.
- Aid to support the distribution of medicine, food, and consumables.
The Stafford Act states that the minimum federal assistance for certain eligible activities “shall not be less than 75 percent of the eligible cost of such assistance.” Additionally, the federal government may waive state-local cost-sharing required matches for more burdensome public assistance programs given the demands of the emergency.
Grants made by the federal government under the Stafford Act must be used for approved purposes, but they are not liable for repayment so long as the payment was authorized by an agreement specifying the costs, the costs were reasonable and the purpose of the grant was achieved.
The March 13 emergency declaration certainly wasn’t the first federal appropriation to address the emerging COVID-19 pandemic. On March 4, Congress passed an $8.3 billion package, of which $950 million is targeted to support state and local health agencies. On March 11, the U.S. Department of Health and Human Services (HHS) and the Centers for Disease Control and Prevention (CDC) announced their intention to move forward with awarding over $560 million of this package to states, localities, territories and tribes. Working with state health officers, the CDC is using its existing resources to reach out to state and local jurisdictions to provide access to this funding.
HHS has also set aside other funding to provide initial resources to state and local jurisdictions to combat coronavirus. This includes $25 million for states and local jurisdictions that have borne the largest burden of response and preparedness activities to date. These funds are targeted at severely impacted jurisdictions that need the most help for activities such as monitoring of travelers, data management, lab equipment, supplies, staffing, shipping, infection control and surge staffing. Additional funding for other communities is expected to follow. An additional $10 million has been set aside for states and localities to implement COVID-19 surveillance sites across the U.S., building on the existing influenza and other surveillance systems.
Finally, communities dealing with significant COVID-19 cases, as well as those with small numbers, will feel an impact from the growing economic slowdown that appears to be gripping the country. The Trump administration and members of Congress appear to be coalescing around a $1 trillion or more aid package for the U.S. economy. As business disruptions increase, state and local communities with insufficient rainy day or other reserve funds will face significant financial hardship, which can last long after the worst of the pandemic has receded.
In this time of crisis with many funding streams dedicated to fighting the pandemic, local governments should work to ensure they receive the federal resources needed to protect their most vulnerable residents. Additionally, as new financial realities become clear to local governments, it may be worth contemplating structural and operational changes that can help your government adapt while still meeting the demands of the pandemic and maintaining crucial services to constituents.
As the number of cases around the world grows, Faegre Drinker’s Coronavirus Resource Center is available to help you understand and assess the legal, regulatory and commercial implications of COVID-19.