The NCSL Blog


By Daniel Shea

State by state over the course of the past two months governors have closed “non-essential” businesses and directed residents to stay at home for all but “essential” activities. The scope of these orders and what’s considered “essential” can vary significantly depending on the state.

Worker at control boardBesides health care and other frontline workers, the energy sector—utilities and operators of critical energy infrastructure—have been vocal about the need to designate certain energy services as essential in order to keep the lights on and fuel moving.

Each of the 43 states that have defined the essential workforce during the COVID-19 response—mostly through governors’ orders—has included energy. Of those, 19 states adopted the U.S. Department of Homeland Security's guidance on essential critical infrastructure workers, which breaks energy into three subsectors: electricity, natural gas and petroleum. The remaining 24 states developed their own definitions, though most of these still follow the general scope of the federal guidance.

(For more detailed information on essential workforce designations across the states, visit NCSL’s COVID-19: Essential Workers in the States.)

The inclusion is important to ensure that these vital services continue to fuel the economy and power people’s homes without disruption during emergencies. But it’s also sparked a measure of debate over whether states should consider a more streamlined and predictable solution for lifeline functions—designated by the federal government as energy, transportation, water and communications—which are considered so critical that their disruption would adversely affect critical infrastructure across a variety of sectors.

The argument is that these functions are so vital to modern life—to the health and security of the nation, but also to emergency response and recovery efforts—that they would be considered “essential services” in any imaginable emergency. To that end, the industry has sought greater certainty in times of uncertainty, asking state legislatures to consider defining these “essential services” in state emergency response statutes, rather than relying on one-off declarations each time an emergency is declared.

While a number of states include the restoration of utility service as an essential function during emergencies, none appear to explicitly take this step of designating certain businesses and services as essential across emergencies. And while restoration of utility service is important in the wake of natural disasters, maintaining reliable service in an emergency would not fall under those parameters—a fact that has been highlighted by the pandemic, which threatens the human expertise required to operate critical infrastructure.

As states begin their recovery and legislatures return to their work, it seems inevitable that a microscope will be placed over emergency response efforts and ways to ensure that future responses—regardless of the emergency—are more robust and coordinated. Given the extent of the discussion taking place now, the designation of essential services may be one of those topics that come before legislatures in the years to come.

Dan Shea is a senior policy specialist in NCSL’s Energy Program.

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Posted in: Energy, COVID-19
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About the NCSL Blog

This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.