Many Americans have heard of the Stafford Act, 42 U.S.C. § 5121, et seq., which empowers the federal government to provide states certain types of monetary and non-monetary assistance, in instances of declared emergency. However, far fewer Americans have heard of the Emergency Management Assistance Compact (“EMAC”), approved by Congress in Public Law 104-321, pursuant to Article I, section 10 of the United States Constitution. See id. (“[n]o State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State.”)
Pursuant to this federal authorization, all 50 states, the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands and the Northern Mariana Islands have all adopted the EMAC into their respective state, district or territorial codes. While technically a “compact,” the EMAC is analogous to an interstate mutual aid treaty, under which states, DC and territories may request emergency assistance from one another, in a coordinated fashion. The EMAC is coordinated through state emergency management agencies (“EMAs”) – the state version of FEMA – on behalf of respective states’ governors.
After a governor declares a state of emergency, that state’s EMA opens an event in the on-line EMAC system and submits what are known as REQ-As, which stands for requests for assistance. There is almost no limit to the types of assistance a state may request under the EMAC. For example, it could be for materials, firefighters, vehicles, medical supplies, medical personnel or even National Guard troops. The REQ-A process creates an inter-state contractual agreement for repayment of aid provided and an orderly process for facilitating that repayment, which is often done at least in part with Stafford Act dollars from FEMA.
When National Guard troops are provided under the EMAC, the sending and requesting states enter into a Memorandum of Understanding or “MOU,” which is signed by each state’s governor, and is analogous to a status of forces agreement[1] between the United States and a foreign nation. During the aftermath of Hurricane Katrina, tens of thousands of National Guard troops from across the country deployed to Mississippi and Louisiana, to assist with search and rescue, security, recovery efforts and the repair or protection of vital infrastructure.
With respect to the current pandemic of SARS-CoV-2 and its resulting COVID-19 illness, states may invoke the EMAC, for personal protective equipment, medical supplies and personnel or other assistance. When that occurs, it can have a dramatic effect on the ability of an injured person or business to assert a tort claim, as the immunity provisions of EMAC’s Article VI generally shift tort liability to the requesting state. Further, the EMAC provides in part that “[n]o party state or its officers or employees rendering aid in another state pursuant to this compact shall be liable on account of any act or omission in good faith on the part of such forces while so engaged or on account of the maintenance or use of any equipment or supplies in connection therewith. Good faith in this article shall not include willful misconduct, gross negligence, or recklessness.”
As a result, when counseling clients in matters related to the current pandemic, attorneys should take into account the source of the product or personnel at issue. The answer could be outcome determinative.
For more information about the EMAC, please visit https://www.emacweb.org/.
[1] A status of forces agreement is a bilateral or multilateral agreement that defines the legal position of a visiting military force deployed in the territory of a friendly state. Also called by the acronym SOFA. See https://www.jcs.mil/Portals/36/Documents/Doctrine/pubs/dictionary.pdf at page 203.
