Attorneys Suggest Newsom’s Declaration of Bird Flu State of Emergency May Be Unlawful

So, California Gov. Gavin Newsom declared a state of emergency related to bird flu on Wednesday. However, at least one California civil rights attorney argues that it may not be legal. This is because Newsom and his office have emphasized that the declaration is a “proactive” measure and the risk to the public is very low.

The headline of the announcement on Newsom’s website reads, “Governor Newsom takes proactive action to strengthen robust state response to Bird Flu.” (Don’t worry, Governor, we’ve archived it.) In a statement accompanying the declaration, Newsom said:

“While the risk to the public remains low, we will continue to take all necessary steps to prevent the spread of this virus.”

As I wrote earlier, there’s a major concern among Californians that Newsom will use this emergency declaration to push through essentially unrelated actions as he did during the COVID state of emergency. When one Californian, physician and activist Dr. Houman Hemmati, shared such sentiments on X, Newsom’s press office replied, saying:

Get the facts

This isn’t COVID-19

Risk is very low.

This is proactive to protect public health + Ag industry.

Bird flu isn’t spreading person-to-person.

No public mask mandates or restrictions.

Avoid raw milk & unnecessary contact with livestock.

Get the facts⬇️

This isn’t COVID-19.

Risk is very low.

This is proactive to protect public health + Ag industry.

Bird flu isn’t spreading person-to-person.

No public mask mandates or restrictions.

Avoid raw milk & unnecessary contact with livestock.

— Governor Newsom Press Office (@GovPressOffice) December 18, 2024

If this is all proactive and there’s a very low risk that can be mitigated by avoiding unnecessary contact with livestock (and very few Californians have any contact with livestock, anyway), then why is the state of emergency needed? 

Civil rights attorney Laura Powell, who has been a key part of fighting California’s physician censorship law, quickly pointed out that a proactive state of emergency isn’t legal, posting on X:

.@CAgovernor declared a state of emergency due to bird flu. Legally, such a declaration means he found the “existence of conditions of disaster or of extreme peril to the safety of persons and property.”

But his spokesman is announcing that in reality, the “risk is very low” and… pic.twitter.com/E3EywTqcK4

— Laura Powell (@LauraPowellEsq) December 19, 2024

She wrote:

But his spokesman is announcing that in reality, the “risk is very low” and that this is just a “proactive” measure.

We must not become inured to such flagrant abuses of power.

California Government Code Section 11342.545 defines what an “emergency” is:

“Emergency” means a situation that calls for immediate action to avoid serious harm to the public peace, health, safety, or general welfare.

Ca. Gov. Code § 11342.545

That’s clearly not the case here, according to the governor’s own words.

And then California Government Code Section 8558 sets out what a state of emergency is. Newsom’s team is likely relying on the portion of that section highlighted below as their justification for the declaration while ignoring the beginning.

(b) “State of emergency” means the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons and property within the state caused by conditions such as air pollution, fire, flood, storm, epidemic, riot, drought, cyberterrorism, sudden and severe energy shortage, electromagnetic pulse attack, plant or animal infestation or disease, the Governor’s warning of an earthquake or volcanic prediction, or an earthquake, or other conditions, other than conditions resulting from a labor controversy or conditions causing a “state of war emergency,” which, by reason of their magnitude, are or are likely to be beyond the control of the services, personnel, equipment, and facilities of any single county, city and county, or city and require the combined forces of a mutual aid region or regions to combat, or with respect to regulated energy utilities, a sudden and severe energy shortage requires extraordinary measures beyond the authority vested in the Public Utilities Commission.

Gov. Newsom, what are the “conditions of disaster or of extreme peril to the safety of persons and property within the state” that form the basis of your emergency declaration?

As this situation is developing quickly, at this time it is unclear what action Newsom’s opponents will take to challenge this seemingly illegal emergency declaration. But challenge it, they will.