Can the Governor of North Carolina force counties and municipalities near a nuclear power plant to participate in the emergency response planning and training exercises the NRC requires before licensing the plant?
Plain-English summary
The Nuclear Regulatory Commission will not license a nuclear power plant unless a state and local emergency response plan is in place and has been tested through a full-scale exercise. North Carolina had nuclear plants in operation (Brunswick, McGuire, Catawba) and Shearon Harris was moving toward operation. The Division of Emergency Management in the Department of Crime Control and Public Safety did the state-level planning under Chapter 166A. But the plans need county and municipal participation, sometimes from local governments hostile to the plant being licensed.
The Secretary of Crime Control and Public Safety asked the AG: can the Governor compel local governments to participate?
Special Deputy Attorney General Isaac T. Avery, III answered yes.
The Emergency Management Act of 1977 (Chapter 166A) was the legal hook. Its purpose, stated in § 166A-2, was to spell out the authority of the Governor, state agencies, and local governments in dealing with disasters, natural or man-made. § 166A-5 gave the Governor broad authority over emergency management. Specifically, § 166A-5(1)a.6 authorized the Governor:
To utilize the services, equipment, supplies, and facilities of existing departments, offices, and agencies of the State and of the political subdivisions thereof, the officers and personnel of all such departments, offices, and agencies are required to cooperate with and extend such services and facilities to the Governor upon request. This authority shall extend to a state of disaster, imminent threat of disaster or emergency management planning and training purposes.
That single statutory sentence put three things on the table:
- The Governor can use local government resources.
- Local government officials and personnel are required to cooperate.
- This authority is not limited to declared emergencies; it expressly extends to planning and training.
The AG also pointed out that emergency management is defined broadly in § 166A-4(1) to include the "never-ending preparedness cycle" of prevention, mitigation, warning, movement, shelter, emergency assistance, and recovery. Planning and exercising for a nuclear plant fits comfortably within that definition.
The opinion confronted directly the question of whether nuclear-plant-specific planning was different. It was not. The Governor's authority extended to "any type disaster"; fixed nuclear facility planning was a subset of disaster planning. A local government that wanted no part of nuclear-plant emergency planning could not opt out.
The AG also noted two extraordinary features of this authority. First, it could be exercised without the Council of State's concurrence, unlike many other emergency-management actions. Second, if a county abolished its emergency management agency in an attempt to avoid participation, the Governor had authority under § 166A-7(a)(3) to establish a new county agency with the same authority. The state-level fallback was robust.
Currency note
This opinion was issued in 1986. 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. Chapter 166A has been substantially amended since 1986, including a major rewrite in 2012 (S.L. 2012-12) that consolidated and modernized the statute. The basic framework, gubernatorial authority over emergency management and required local cooperation, remains in place, but the specific provisions cited in this opinion have moved or been renumbered. The Department of Crime Control and Public Safety has been reorganized into the Department of Public Safety. The Division of Emergency Management is now part of DPS. Modern nuclear emergency planning continues to be coordinated through the Federal Emergency Management Agency, the NRC, and state-local planning teams.
Background and statutory framework
Nuclear power plant emergency planning is intricate. The NRC requires emergency-planning zones (EPZs) around each plant: a 10-mile plume exposure pathway zone and a 50-mile ingestion pathway zone. Within those zones, state and local governments must coordinate on warning systems, evacuation routes, shelter-in-place plans, school evacuation, livestock and crop monitoring, traffic control, and decontamination. Full-scale exercises test these arrangements every two years. Failure to maintain a functional plan can lead the NRC to withdraw an operating license.
The 1986 question came up in the context of the Shearon Harris plant near Raleigh. Several adjacent counties and municipalities had voiced concerns about the plant, and some local officials had questioned whether they would participate in the planning at all. The NRC's licensing decision turned in part on whether the plan could function without their cooperation.
The AG's clear answer (local governments have no opt-out) gave the state Emergency Management Division the legal authority it needed to insist on local participation. The combination of the cooperation-required clause and the back-up authority to establish a new county agency if the existing one folded was a strong package. The Governor at the time (James G. Martin) did not need to actually invoke these powers heavily, but the existence of the authority shaped the negotiating posture.
The opinion is also notable for what it did not say. It did not address First Amendment or anti-commandeering claims local governments might raise. It did not address whether federal law (e.g., 10 C.F.R. Part 50 Appendix E, the federal emergency planning requirements) would preempt any local government objection. It addressed only the state-law question: does Chapter 166A authorize the Governor to require local participation? The answer was yes.
Common questions
Could a county refuse to fund its part of the emergency planning?
The opinion did not address funding. The Emergency Management Act provided for various funding mechanisms, including state grants and federal pass-through. A county that refused to make staff and resources available, or that attempted to abolish its emergency management agency, would face the Governor's § 166A-7(a)(3) backup authority, with the new state-established county agency taking over and presumably drawing on state funding.
Did the same authority extend to non-nuclear disaster planning?
Yes. The opinion was framed around nuclear-plant emergency planning because that was the specific question, but the statutory authority extended to "any type disaster": hurricanes, floods, hazardous-materials releases, even nuclear war. The whole point of Chapter 166A's broad definition of emergency management was to give the state a single framework that worked across hazard types.
What about a county that disagreed with the content of the plan?
The cooperation requirement was procedural: local governments had to participate, contribute personnel, and run through the exercises. The AG did not address whether local governments could refuse to perform specific actions in the plan they considered unsafe or impractical. Disputes over plan content would presumably be worked out through the planning process, with the state Emergency Management Division having final say.
Did the Governor need Council of State concurrence?
No. The opinion specifically noted that unlike many emergency management actions, the planning and exercising authority did not require Council of State concurrence. The Governor could act alone.
Source
- Landing page: https://ncdoj.gov/opinions/emergency-management-authority-of-governor-local-government-participation-emergency-planning/
Citations
- G.S. § 166A-1 through § 166A-7 (NC Emergency Management Act of 1977)
- G.S. § 166A-5(1)a.6 (Governor's authority over local resources for emergency planning)
Original opinion text
Requested By:
Joseph W. Dean, Secretary Department of Crime Control and Public Safety
Question:
Does the Governor have the authority to utilize equipment, supplies, facilities, and personnel of a county or municipality and require local government personnel and agencies to cooperate in emergency management planning and training exercises for a nuclear power plant?
Conclusion:
Yes.
Prior to the granting of a license by the Nuclear Regulatory Commission (NRC) for the operation of a nuclear power plant, an emergency response plan must be approved. There is a further requirement of a training exercise where the plan is tested along with periodic training exercises which involve State and local governments or local governments only. This planning and training through an exercise is performed by the Division of Emergency Management of the Department of Crime Control and Public Safety. This planning, like all other Emergency Management functions, is performed pursuant to Chapter 166A of the General Statutes. The State is responsible for overall planning and coordination of emergency management functions. N.C.G.S. 166A-5. Each county is responsible for emergency management within the county including coordination within the municipalities. N.C.G.S. 166A-7(a). If a county fails to establish an emergency management agency, the Governor may establish one. N.C.G.S. 166A-7(a)(3)
The question has arisen regarding what authority the Governor has to require local governmental personnel and agencies to participate in the planning and training of such emergency plans for fixed nuclear facilities.
The purpose of the North Carolina Emergency Management Act of 1977, N.C.G.S. 166A-1, is to "set forth the authority and responsibility of the Governor, State agencies, and local governments in prevention of, preparation for, response to, and recovery from natural or man-made disasters." N.C.G.S. 166A-2. The Governor is authorized and empowered:
To utilize the services, equipment, supplies, and facilities of existing departments, offices, and agencies of the State and of the political subdivisions thereof, the officers and personnel of all such departments, offices, and agencies are required to cooperate with and extend such services and facilities to the Governor upon request. This authority shall extend to a state of disaster, imminent threat of disaster or emergency management planning and training purposes.
N.C.G.S. 166A-5(1)a.6 (Emphasis added).
Emergency management is defined to include those measures taken by governments at State levels to minimize the adverse effect of any type disaster including the never-ending preparedness cycle of prevention, mitigation, warning, movement, shelter, emergency assistance, and recovery. N.C.G.S. 166A-4(1).
The fact that the emergency response plan is for a fixed nuclear facility as opposed to hurricanes, floods, chemical spills, or nuclear war does not change the authority of the Governor. He is authorized to require local government officials and agencies to cooperate in both the planning of a response to a possible disaster and to participate in the training or exercising necessary to assure such preparation. It is the intent of the General Assembly that State and local governments be prepared for any potential disaster. If local government is unwilling to cooperate in either planning or training, the Governor has the authority to compel cooperation and participation. Such cooperation and participation include planning and training exercises of emergency response plans for nuclear power plants.
On the other hand, if a county abolishes its emergency management agency, the Governor has authority to establish one in the county. The new agency will have the same authority and responsibility as a county agency.
Unlike other requirements in Chapter 166A, the Governor is authorized to order participation in the planning and exercises or may establish a county-based emergency management upon his own determination that such action is appropriate. There is no requirement for concurrence of the Council of State.
LACY H. THORNBURG
Attorney General
Isaac T. Avery, III
Special Deputy Attorney General