IL 20-002 May 20, 2020

Did Illinois law allow Governor Pritzker to issue back-to-back COVID-19 disaster proclamations beyond the original 30-day emergency-powers window without legislative approval?

Short answer: The AG concluded that an earlier 2001 informal opinion (No. I-01-028), which had suggested 30 days was the absolute outer limit, had failed to consider critical legislative history. The General Assembly removed the call-the-General-Assembly-into-session requirement when it replaced the 1951 Civil Defense Act in 1975, added 'public health emergencies' to the definition of 'disaster' in 2003, and pointedly declined to put the 7-day-renewal cap from local declarations on the Governor. Read together, the 30-day limit in section 7 governs how long emergency powers run for any one disaster proclamation, not the maximum time during which the Governor may exercise emergency powers across successive proclamations responding to an ongoing disaster like COVID-19.

Disclaimer: This is an official Illinois Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Illinois attorney for advice on your specific situation.

Subject

Governor's Authority to Exercise Emergency Powers During an Ongoing Public Health Emergency

Plain-English summary

In May 2020, with COVID-19 disaster proclamations stacking up and lawsuits in the air, Senate President Don Harmon asked the AG whether a 2001 informal opinion still controlled. That informal opinion (I-01-028) had concluded that the Governor's emergency powers under section 7 of the Emergency Management Act were limited to a single 30-day window after a disaster proclamation, and that any extension required legislative approval. The 2001 opinion arose from a hypothetical foot-and-mouth-disease outbreak.

The AG's answer in 20-002 was, in effect, "the 2001 opinion is unreliable." Three problems: it failed to cite any of the Act's legislative history; it overlooked that the General Assembly had moved (and partially repealed) the call-the-legislature-into-session language away from section 7; and it ignored that section 11, governing local disaster declarations, contains an explicit 7-day extension cap that the General Assembly conspicuously did not place on the Governor in section 7. The AG also pointed to Public Act 93-249 (2003), which added "public health emergencies" to the definition of "disaster" and contemplated emergencies that could last well past 30 days, with the General Assembly itself potentially unable to convene safely.

When properly read in context, the AG concluded the 30-day clock in section 7 caps the emergency powers exercisable under any single disaster proclamation. It does not foreclose the Governor from issuing successive proclamations in response to an ongoing disaster. The opinion did not announce a new constitutional or statutory rule; it withdrew the 2001 reading by exposing the legislative-history blind spots that produced it.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The COVID-19 disaster proclamations that gave rise to this opinion ended years ago. Several Illinois courts subsequently addressed the Governor's emergency authority in COVID-19 litigation, with mixed results. Anyone analyzing the Governor's emergency-proclamation authority today should read this opinion alongside subsequent court decisions and any statutory amendments to the Emergency Management Act.

Background and statutory framework

Section 7 of the Emergency Management Act gives the Governor specific emergency powers "for a period not to exceed 30 days" after a disaster proclamation. Among them are control of ingress/egress to a disaster area (subsection 7(8)) and the catch-all to "perform and exercise any other functions, powers, and duties as may be necessary to promote and secure the safety and protection of the civilian population" (subsection 7(12)).

Section 4 defines "disaster" broadly. The list includes "epidemic" and "public health emergencies." A "public health emergency" is defined as an occurrence (or imminent threat) of an illness or health condition that is believed to be caused by a novel infectious agent and poses a high probability of large numbers of deaths or widespread infection. COVID-19 fit that definition.

Section 11 separately allows local executives (mayors, county board chairs) to declare local disasters. But section 11 contains a hard cap: a local declaration "shall not be continued or renewed for a period in excess of 7 days except by or with the consent of the governing board of the political subdivision."

Section 9 addresses how to pay for disaster response. It directs the Governor to first use existing appropriations, then the Disaster Relief Fund, then to ask the General Assembly to enact funding legislation.

The Act traces back to the Illinois Civil Defense Act of 1951. The 1951 Act's section 7 gave the Governor emergency powers but required him to "concurrently with his proclamation" call the General Assembly into extraordinary session if it was not already meeting. When Public Act 79-1084 (1975) replaced the Civil Defense Act with the Illinois Emergency Services and Disaster Agency Act, it deliberately moved that "call the General Assembly" language out of the emergency-powers section and into the financing provision, then narrowed it. The legislative debates show that Representative Mahar, the House sponsor, intended Amendment 2 to be only about restraining spending, not about constraining the duration of emergency action.

Public Act 80-180 (1977) added "extended periods of severe and inclement weather" and "critical shortages of essential fuels and energy" to the definition. Public Act 85-1027 (1988) substituted "natural or technological cause" for "natural or man-made cause" and "hazardous materials spill" for "oil spill." Public Act 86-755 (1989) added "telecommunications failure." Public Act 87-168 (1992) renamed the Act the Illinois Emergency Management Agency Act.

The single most important post-2001 amendment for present purposes was Public Act 93-249 (effective July 22, 2003). That Act added "public health emergencies" to the definition of "disaster," added the definition of "public health emergency" to section 4, and required the Illinois Emergency Management Agency to coordinate with the Illinois Department of Public Health under 20 ILCS 2310/2310-50.5. Then-State Senator Barack Obama, a sponsor on the Senate side, described the bill as designed "to respond to public health emergencies that ... so that they may include bioterrorism" and "to ensure disaster relief financing can cover such public health emergencies."

Why the AG reached this conclusion

The AG identified three blind spots in the 2001 informal opinion.

First, the 2001 opinion cited no legislative history at all in answering the third question. That alone suggested incomplete review. Where statutory text leaves a doubt, Illinois courts and AG opinions consult legislative history. By skipping it, the 2001 opinion left major historical signals on the table.

Second, the 2001 opinion relied on section 9 (financing) to imply a 30-day legislative-approval requirement, but did so without acknowledging that section 9's call-the-legislature language is descended from a much broader 1951 provision originally located in section 7 itself. The General Assembly deliberately moved it and reformatted it into a financing-only check. Reading section 9 to recreate a hard 30-day cap on all emergency powers would resurrect what the General Assembly had explicitly trimmed back. The legislative debates on the 1975 amendment confirm Rep. Mahar's intent that Amendment 2 went only to spending discipline, not duration of authority.

Third, the 2001 opinion did not address section 11, which since 1975 has expressly capped local declarations at 7 days absent governing-board consent. The General Assembly placed an explicit duration cap on local executives in section 11 but did not place a similar cap on the Governor in section 7. That is a meaningful drafting choice. If the General Assembly had intended a parallel cap on the Governor, it could easily have written one.

Beyond fixing the 2001 opinion's omissions, the 2020 AG also pointed to amendments enacted after I-01-028 was issued. Public Act 92-073 (effective January 1, 2002) added "acts of domestic terrorism" to the definition of "disaster." Most importantly, Public Act 93-249 (2003) added "public health emergencies." Public health emergencies, by their nature, can last well past 30 days, and the General Assembly itself may be unable to convene safely during one. Reading section 7 to allow the Governor to issue successive 30-day disaster proclamations responding to one ongoing disaster is consistent with that design choice. Reading section 7 the other way would mean the General Assembly created a category of disaster (public health emergency) for which the existing emergency-powers framework was self-defeating.

The AG concluded that the 30-day clock in section 7 governs the emergency powers tied to any specific disaster proclamation. It is not a one-shot annual cap on all gubernatorial emergency action.

Common questions

Did this opinion say the Governor's emergency powers are unlimited?

No. It said the 30-day period in section 7 ties to a specific disaster proclamation. Each proclamation must be tied to a "disaster" within the meaning of section 4. The financing checks in section 9 still apply. The legislative-disapproval check on executive reorganization orders under article V of the constitution is separate. And courts retained their ordinary power to review whether any specific exercise of emergency power complied with statutory and constitutional limits.

What did the 2001 informal opinion conclude?

Informal opinion I-01-028, issued July 2, 2001, was prompted by a hypothetical: if a single confirmed case of foot-and-mouth disease appeared in Illinois, would that justify a disaster declaration, and could the Governor exercise emergency powers for more than 30 days? The 2001 opinion said yes to the first and no to the second, reading section 7 to mean that any extension beyond 30 days required legislative approval. The 2020 opinion did not say I-01-028's overall conclusion was wrong on its facts (foot-and-mouth, not public health), but said its reasoning had not engaged the legislative history that would have changed the answer for an ongoing public health emergency.

Does this opinion give the Governor unlimited successive proclamations forever?

The opinion did not say "forever." It said the 30-day clock tracks each individual proclamation, not all gubernatorial emergency action across a disaster. The Governor still needs a continuing factual basis to declare each successive proclamation: an "occurrence or threat" of a disaster within the meaning of section 4. The opinion left untouched any judicial review of whether successive proclamations remain factually justified.

Why did the General Assembly remove the "call the legislature into session" language in 1975?

The opinion quotes Rep. Mahar's debate remarks. He explained that Amendment 2, which restored some of the original 1951 language, was about restraining the Governor's spending out of General Revenue without legislative consent. He pointed out that the Governor already has separate constitutional authority to call a special session, so removing the automatic-call language did not strip a power that was already available elsewhere. The 1975 General Assembly chose to keep funding under tight legislative control without binding the Governor's emergency-proclamation discretion to a fixed legislative-session schedule.

How did the AG handle the explicit 30-day text in section 7?

The opinion treated the 30-day language as time-binding the powers exercisable under each specific proclamation. The AG read it together with section 4's broad definition of "disaster," section 9's reformulated financing rules, and section 11's express 7-day cap on local declarations. The negative inference from section 11 (express 7-day cap on local executives, no comparable cap on the Governor) carried significant weight.

Citations

20 ILCS 3305/1 et seq. (Illinois Emergency Management Agency Act), §§2, 4, 5, 6, 7, 9, 11
20 ILCS 2310/2310-50.5 (Department of Public Health Powers and Duties Law)
Ill. Const. 1870, art. III; art. IV, §3
Ill. Const. 1970, art. II, §1; art. IV, §2(e)
Ill. Att'y Gen. Inf. Op. No. I-01-028 (July 2, 2001)
Public Act 79-1084 (effective September 22, 1975)
Public Act 80-180 (effective August 3, 1977)
Public Act 85-1027 (effective June 30, 1988)
Public Act 86-755 (effective September 1, 1989)
Public Act 87-168 (effective January 1, 1992)
Public Act 92-073 (effective January 1, 2002)
Public Act 93-249 (effective July 22, 2003)
1951 Ill. Laws 1219 (Illinois Civil Defense Act of 1951)

Source

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS

KWAME RAOUL
ATTORNEY GENERAL

May 20, 2020

FILE NO. 20-002

EMERGENCY PREPAREDNESS:
Governor's Authority to Exercise Emergency Powers During an Ongoing Public Health Emergency

The Honorable Don Harmon
President of the Illinois Senate
State Senator, 39th District

Dear President Harmon:

I have your letter inquiring whether informal opinion No. I-01-028, issued July 2, 2001, considered all legislative history of the Illinois Emergency Management Agency Act (the Emergency Management Act) (20 ILCS 3305/1 et seq. (West 2018)) in answering the third question addressed in that informal opinion.

For the reasons stated below, it is my opinion that informal opinion No. I-01-028 did not consider all of the legislative history of the Emergency Management Act existing at the time the opinion was issued. In fact, in addressing this third question, the informal opinion did not cite to any legislative history of the Emergency Management Act at all. This omitted legislative history reveals that the provisions requiring the Governor to concurrently issue a call to convene the General Assembly into session when an emergency proclamation is issued were removed from the relevant provisions of the Emergency Management Act. The informal opinion also did not compare a provision of the Emergency Management Act that contains language that has a specific limitation on the duration of a local disaster declaration with that of section 7 of the Emergency Management Act. In addition, since the issuance of informal opinion No. I-01-028, there have been several legislative changes to the Emergency Management Act. Most notably to your question and the impending legislative session in light of the current public health situation, the definition of "disaster" in the Act has been amended to specifically include "public health emergencies."

BACKGROUND

Emergency Management Act

The Emergency Management Act was enacted to ensure that Illinois was prepared to and will adequately deal with any disasters, in order to preserve the lives and property of the people of this State, and to protect the public peace, health, and safety in the disaster. 20 ILCS 3305/2 (West 2018). The Act provides that if a disaster exists, then the Governor may issue a proclamation formally declaring the disaster. 20 ILCS 3305/7 (West 2018). When such proclamation is issued, the Act grants broad emergency powers to the Governor. 20 ILCS 3305/7 (West 2018). The Emergency Management Act also grants specific emergency management powers to the Governor. 20 ILCS 3305/6 (West 2018). Further, in the event of a local disaster, the Act grants specific emergency powers to the principal executive officer of a political subdivision. 20 ILCS 3305/11 (West 2018).

Section 7 of the Emergency Management Act (20 ILCS 3305/7 (West 2018)) addresses the Governor's emergency powers and currently provides, in pertinent part:

In the event of a disaster, as defined in Section 4, the Governor may, by proclamation declare that a disaster exists. Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days the following emergency powers; provided, however, that the lapse of the emergency powers shall not, as regards any act or acts occurring or committed within the 30-day period, deprive any person, firm, corporation, political subdivision, or body politic of any right or rights to compensation or reimbursement which he, she, it, or they may have under the provisions of this Act:

(8) To control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein.

(12) * * * perform and exercise any other functions, powers, and duties as may be necessary to promote and secure the safety and protection of the civilian population. (Emphasis added.)

Section 4 of the Emergency Management Act (20 ILCS 3305/4 (West 2018)) defines a "disaster" to include "an occurrence or threat of widespread or severe damage, injury or loss of life or property resulting from any natural * * * cause, including but not limited to * * * epidemic * * * [or] public health emergencies[.]" The Act further defines the phrase "public health emergency" as "an occurrence or imminent threat of an illness or health condition that[,] [among other things,] is believed to be caused by * * * the appearance of a novel * * * infectious agent * * *[,] and [it] poses a high probability of * * * a large number of deaths in the affected population[,] * * * or widespread exposure to an infectious * * * agent that poses a significant risk of substantial future harm to a large number of people in the affected population."

Section 11 of the Emergency Management Act (20 ILCS 3305/11 (West 2018)) permits a local disaster to be declared "by the principal executive officer of a political subdivision, or his or her interim emergency successor." In the event that a local disaster is declared by the principal executive officer of a political subdivision, then the plain language of section 11 makes it clear that the local disaster declaration "shall not be continued or renewed for a period in excess of 7 days except by or with the consent of the governing board of the political subdivision." 20 ILCS 3305/11(a) (West 2018).

Informal Opinion No. I-01-028

In informal opinion No. I-01-028, issued July 2, 2001, this office addressed, among other things, whether the Governor may exercise emergency powers for a period in excess of 30 days after the declaration of a disaster in response to the discovery of a single confirmed case of foot and mouth disease in Illinois. As described in informal opinion No. I-01-028, foot and mouth disease is an animal virus which was not considered a human health risk but could be carried by humans on their clothing, shoes, body, and personal items, thereby transmitting the disease to animals. Ill. Att'y Gen. Inf. Op. No. I-01-028 at 1-2. In that context, this office concluded that the emergency powers granted to the Governor could not be extended beyond the 30-day period permitted in section 7 of the Emergency Management Act without legislative approval. Ill. Att'y Gen. Inf. Op. No. I-01-028 at 4-6. In reaching that conclusion, informal opinion No. I-01-028 reviewed the relevant language of subsection 7(a)(1) of the Emergency Management Act (20 ILCS 3305/7(a)(1) (West 2000)), which provides that "the Governor shall have and may exercise for a period not to exceed 30 days" the emergency powers set out therein after issuing a proclamation that a disaster exists. The informal opinion then stated:

Subsection 7(a)(1) clearly authorizes the Governor to exercise emergency powers for up to 30 days. A construction of its provisions to allow the Governor to extend the 30 day period would render the limitation clause meaningless. A more reasonable construction, taking into consideration the other provisions of the Act, is that the Governor would be required to seek legislative approval for the exercise of extraordinary measures extending beyond 30 days. Ill. Att'y Gen. Inf. Op. No. I-01-028 at 5-6.

In reaching this conclusion, informal opinion No. I-01-028 relied, in part, on section 9 of the Emergency Management Act (20 ILCS 3305/9 (West 2000)), which concerns the financing of a disaster response and provided, in pertinent part:

It is the legislative intent that the first recourse shall be to funds regularly appropriated to State and political subdivision departments and agencies. If the Governor finds that the demands placed upon these funds in coping with a particular disaster are unreasonably great, he may make funds available from the Disaster Relief Fund. If monies available from the Fund are insufficient, and if the Governor finds that other sources of money to cope with the disaster are not available or are insufficient, the Governor shall request the General Assembly to enact legislation as it may deem necessary to transfer and expend monies appropriated for other purposes or borrow, for a term not to exceed 2 years from the United States government or other public or private source. If the General Assembly is not sitting in regular session to enact such legislation for the transfer, expenditure or loan of such monies, and the President of the Senate and the Speaker of the House certify that the Senate and House are not in session, the Governor is authorized to carry out those decisions until such time as a quorum of the General Assembly can convene in a regular or extraordinary session. (Emphasis added.)

Informal opinion No. I-01-028 then stated, with regard to section 9 of the Act:

The purpose of this provision, like section 7 of the Act, is to empower the Governor to deal immediately with emergency situations. Even though many disaster situations could require remediation for a period long in excess of 30 days, normal governmental processes, including legislative action, can be set in motion to meet such needs within 30 days of the occurrence. (Emphasis added.) Ill. Att'y Gen. Inf. Op. No. I-01-028 at 6.

In answering the question of whether the Governor may exercise emergency powers for a period in excess of 30 days after the declaration of a disaster in response to the discovery of one single confirmed case of foot and mouth disease in Illinois, informal opinion No. I-01-028 does not cite to any of the legislative history of the Act.

ANALYSIS

You have specifically inquired concerning the legislative history of the Emergency Management Act. In addressing your question, it is necessary to review the Act's legislative history both prior to, and subsequent to, the issuance of informal opinion No. I-01-028.

Legislative History Prior to the Issuance of Informal Opinion No. I-01-028

The Emergency Management Act traces its origins to the Illinois Civil Defense Act of 1951 (the Civil Defense Act) (1951 Ill. Laws 1219). See generally Public Act 79-1084, effective September 22, 1975. The General Assembly originally enacted the Civil Defense Act to prepare for and carry out such functions, other than functions for which military forces are primarily responsible, as may be necessary or proper to prevent, minimize, repair, and alleviate injury and damage resulting from disasters caused by enemy attack, enemy sabotage, or other hostile action. See People v. City of Chicago, 413 Ill. 83, 88, 108 N.E.2d 16, 19 (1952). In 1957, the General Assembly amended the Civil Defense Act (1957 Ill. Laws 159, 160-61) to cover not only disasters due to hostile action but also resulting from "fire, flood, earthquake or other natural causes" and "natural disaster[s] of major proportions[.]"

In 1975, the General Assembly replaced the Civil Defense Act with the Illinois Emergency Services and Disaster Agency Act of 1975 (Public Act 79-1084, effective September 22, 1975, codified at Ill. Rev. Stat. 1975, ch. 127, par. 1101 et seq.). During the legislative debates on House Bill 1109, which upon enactment became Public Act 79-1084, the House sponsor stated:

Mahar: * * * House Bill 1109, which is known as the Illinois Emergency Services and Disaster Agency Act of 1975, it replaces the old Civil Defense Act of 1951. Although most of the provisions of the 24 year old Civil Defense Act will be retained, the Act will bring Illinois in accord with the Federal laws and regulations * * *. Presently, 46 states have come in accord and revised their Civil Defense Act. Now, to many people throughout the State of Illinois, Civil Defense still means the old World War II image. The image of a person in a white hat with a bucket of sand looking at the sky for airplanes. This Bill is oriented toward all types of disasters, including the natural and man-made disasters. Remarks of Rep. Mahar, May 19, 1975, House Debate on House Bill No. 1109, at 190.

Public Act 79-1084 significantly amended the language regarding the Governor's exercise of emergency powers. Before it was repealed by Public Act 79-1084, effective September 22, 1975, section 7 of the Civil Defense Act (Ill. Rev. Stat. 1973, ch. 127, par. 275) addressed the Governor's emergency powers and provided, in pertinent part:

In the event of an actual enemy attack upon the United States (as defined in Section 3 of this Act) or the occurrence, within the State of Illinois, of a major disaster resulting from enemy sabotage or other hostile action, or when a natural disaster of major proportions has actually occurred in this State, the Governor may, by proclamation, declare that a Civil Defense Emergency exists; and, if the General Assembly is then in regular session, or, in the event that it is not, if the Governor concurrently with his proclamation declaring such an emergency issues a call for an immediate convention of the General Assembly in extraordinary session for the purpose of amending or repealing this Act or any other act related to or concerned with Civil Defense and of enacting such other legislation concerning Civil Defense as it may deem necessary, he shall have and may exercise for a period not to exceed 30 days the following emergency powers[.] (Emphasis added.)

Pursuant to the now-repealed language in section 7 of the Civil Defense Act, when the Governor issued a proclamation that a civil defense emergency existed, the Governor was required to concurrently issue a call to convene the General Assembly into session to consider legislation concerning civil defense.

When it enacted Public Act 79-1084, the General Assembly did not include the language regarding the Governor calling the General Assembly into session within section 8 of the Illinois Emergency Services and Disaster Agency Act of 1975 (Ill. Rev. Stat. 1975, ch. 127, par. 1108), which sets out the general emergency powers of the Governor and, like the current language of section 7 of the Emergency Management Act, provided that "[i]n the event of a disaster, as defined in Section 4, the Governor may, by proclamation declare that a disaster emergency exists" and "[u]pon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days the following emergency powers[.]" Instead, Public Act 79-1084 placed language requiring the Governor to call the General Assembly into session in section 10 of the Illinois Emergency Services and Disaster Agency Act (Ill. Rev. Stat. 1975, ch. 127, par. 1110) addressing financing disaster emergencies. As discussed above, informal opinion No. I-01-028 relied on this language, then codified as section 9 of the Emergency Management Act, without regard to the fact that it no longer appeared in section 7 of the Act.

Informal opinion No. I-01-028 also failed to include a reference to the provision of the Emergency Management Act that contains an explicit limitation on the duration of a local disaster declaration. Section 11 of the Emergency Management Act (20 ILCS 3305/11 (West 2018)), which addresses local disaster declarations, provides that a local disaster declaration "shall not be continued or renewed for a period in excess of 7 days except by or with the consent of the governing board of the political subdivision." By overlooking this language, the informal opinion omitted a key provision of the Act wherein the General Assembly imposed on all of the executives of political subdivisions a limitation on their ability to extend a disaster declaration, either by continuation or renewal. If the General Assembly had intended to limit the Governor's authority in this regard, it could have included language in section 7 similar to that found in section 11. It did not.

Additionally, while the language of section 7 of the Civil Defense Act expressly required the Governor to call the General Assembly into session concurrently with issuing a disaster proclamation, the scope of potential disasters to which those powers could be aimed was limited. As noted above, before Public Act 79-1084 was enacted, the Civil Defense Act contemplated responding to civil defense emergencies resulting from enemy attack, enemy sabotage, or other hostile action, or from fire, flood, earthquake, or other natural causes. Public Act 79-1084 added section 4 to the Illinois Emergency Services and Disaster Agency Act (Ill. Rev. Stat. 1975, ch. 127, par. 1104) and more broadly defined "disaster" to mean:

an occurrence or threat of widespread or severe damage, injury or loss of life or property resulting from any natural or man-made cause, including but not limited to fire, flood, earthquake, wind, storm, oil spill or other water contamination requiring emergency action to avert danger or damage, epidemic, air contamination, blight, drought, infestation, explosion, riot, or hostile military or paramilitary action.

Before informal opinion No. I-01-028 was issued, the General Assembly amended the definition of "disaster" to further expand the scope of the statute. For example, Public Act 80-180, effective August 3, 1977, added "extended periods of severe and inclement weather" and "critical shortages of essential fuels and energy" to the definition of "disaster." Public Act 85-1027, effective June 30, 1988, which enacted the Illinois Emergency Services and Disaster Agency Act of 1988, among other things, amended the definition of "disaster" by substituting "natural or technological cause" in place of "natural or man-made cause," and "hazardous materials spill" for "oil spill[.]" Public Act 86-755, effective September 1, 1989, did not amend the definition of "disaster" in section 4 of the Act, but added "telecommunications failure" to the potential disasters referenced in the policy statements set out in section 2 of the Emergency Management Act (see 20 ILCS 3305/2 (West 2018)).

Informal opinion No. I-01-028 applied the definition of "disaster" in section 4 of the Emergency Management Act (20 ILCS 3305/4 (West 2000)), which then included the terms "epidemic" as well as "blight," which generally referred to plant diseases, and "infestation," which referred to parasites affecting either plants or animals. Ill. Att'y Gen. Inf. Op. No. I-01-028 at 2. Informal opinion No. I-01-028 concluded that "[t]he use of these terms, together with the expressed legislative intent to include all types of occurrences within the purview of the Act, clearly contemplates that threats to economically important plants and animals, as well as to the health and safety of people, may be considered 'disasters'." Ill. Att'y Gen. Inf. Op. No. I-01-028 at 2. Significantly, however, informal opinion I-01-028 did not consider a threat to the health and safety of people so great that the convening of the General Assembly could increase, rather than mitigate, the disaster.

Legislative History Subsequent to the Issuance of Informal Opinion No. I-01-028

Not only did informal opinion No. I-01-028 not contain a review of the then existing legislative history of the Emergency Management Act, but when the informal opinion was issued, this office was also not in a position to anticipate amendments to or analyze the legislative history of future Public Acts that would be signed into law subsequent to the issuance of the informal opinion. Since the issuance of informal opinion No. I-01-028, the General Assembly has continued to expand the definition of "disaster." Senate Bill 860, which was enacted as Public Act 92-073, effective January 1, 2002, added "acts of domestic terrorism" to the definition of "disaster" and added statutory authority for taking possession of or acquiring "animals and livestock; feed and seed" to the Governor's emergency powers in section 7 of the Emergency Management Act. Senate Bill 860 was described during legislative debates as an agency clean-up bill which included "an amendment which is a reflection of the recent concern about animal disease." Remarks of Sen. Myers, April 3, 2001, Senate Debate on Senate Bill No. 860, at 77; see also Remarks of Rep. Poe, April 26, 2001, House Debate on Senate Bill No. 860, at 7. Senate Bill 860 passed the General Assembly on April 26, 2001, but it had not been approved by the Governor until 10 days after informal opinion No. I-01-028 was issued.

Notably, in light of present circumstances, Public Act 93-249, effective July 22, 2003, specifically added "public health emergencies" to the definition of "disaster" and added the definition of "public health emergency" to section 4 of the Act. Public Act 93-249 also added language to the Emergency Management Act (see 20 ILCS 3305/5(f)(2.6) (West 2018)) and the Department of Public Health Powers and Duties Law (see 20 ILCS 2310/2310-50.5 (West 2018)) to require that the Illinois Emergency Management Agency and the Illinois Department of Public Health coordinate with one another in responding to public health emergencies. During legislative debate on House Bill 6, which upon enactment became Public Act 93-249, then-State Senator Barack Obama stated that the bill amends the Act and other relevant statutory provisions "to respond to public health emergencies that ... so that they may include bioterrorism" and "to ensure disaster relief financing can cover such public health emergencies." Remarks of Sen. Obama, May 16, 2003, Senate Debate on House Bill No. 6, at 20. The expansion of a disaster to expressly include public health emergencies, that could clearly extend past 30 days and foreseeably involve situations in which the General Assembly would be unable to safely convene, further evinces an intent that the Governor have the authority to issue successive disaster proclamations without legislative approval in the case of an ongoing disaster. In this regard, the 30-day limitation found in section 7 of the Act must necessarily address the period of time within which the Governor may exercise his emergency powers related to a particular disaster proclamation.

CONCLUSION

For the reasons stated above, it is my opinion that informal opinion No. I-01-028 did not consider all of the legislative history of the Illinois Emergency Management Agency Act pertinent to addressing a situation where the Governor is required to exercise emergency powers for successive 30-day periods.

Very truly yours,