Public Transit Emergency Preparedness Against Ebola and Other Infectious Diseases: Legal Issues (2017)

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13 increasingly rely on state and federal coordination. Thus, during an IDO, a transportation agency may need to interact with local, state, and federal response partners. I. Conflict of State and Federal Laws: Preemption Given the potential overlap of federal and state law, conflicts might occur. The Supremacy Clause of the U.S. Constitution states that the Constitution, the laws of the United States made pursuant to the Constitution, and all treaties are the dominant law of the country and states must follow them.97 This clause gives rise to the doctrine known as preemp- tion, which means that a federal law will likely prevail over state law if there is a conflict. In a simi- lar manner, a state law will likely prevail over local or municipal regulations. Ultimately, however, the application of federal or state law will depend on the particular circumstances of a situation. For example, in the case of the 2014 Ebola outbreak, the CDC, which has authority to implement interstate quarantines, issued guidance recommending against involuntary quarantine and isolation.98 However, states were free to follow the CDC guidance or implement more stringent poli- cies,99 and many chose to do the latter.100 New York and New Jersey,101 for example, enacted far stricter public health measures than those recommended by the CDC. Although the CDC recommended other- wise, it was unable to prevent the states’ actions. This section highlights key powers and under- scores the importance of understanding the legal issues when confronting an infectious disease in a transportation setting. The next sections will focus on select, specific responses that may be used by transit or transportation agencies to respond to an IDO, the powers that exist to use such responses, and the legal issues that may arise with the applica- tion of each. For example, in a declared emergency, most states grant governors broad powers to respond and require state agencies to cooperate and aid with the response. In many cases, as these responses may be initiated by another actor or official outside of the transit agency, a discussion of who those actors may be, as well as the powers granted to them, will be included in this digest. III. CLOSURES OF MAJOR TRAFFIC GENERATORS A. Introduction To contain the spread of disease or an IDO, it may become necessary to close major traffic generators. In most IDOs, limiting or halting the movement of people will help contain the spread of disease. Closures of major traffic generators could signifi- cantly impact transit and transportation, from ridership levels to available transportation routes. B. Definition of Closure of Major Traffic Generators The definition of a “major traffic generator” (MTG) varies widely but generally indicates “a land use that generates a high traffic volume to and from the site, usually defined in terms of vehicles per hour or vehi- cles per day.”102 In general, definitions will refer to any concentrated land use that results in high volumes of traffic. The Code of Federal Regulations states that a “‘major highway traffic generator’ means either an urbanized area with a population over 100,000 or a similar major concentrated land use activity that produces and attracts long-distance Interstate and statewide travel of persons and goods.”103 States and municipalities can have their own definitions. These definitions are usually relative to the size of the state or municipality, and any quantitative measurement within these definitions may be much lower than the one contained in the federal code. Connecticut, for example, defines an MTG as “any open air theater, shopping center or other such development” that has “two-hundred or more parking spaces, or a gross floor area of 100,000 square feet or more.”104 Others may 97 U.S. cOnsT. art. 6 § 2, cl. 9. 98 CDC, Notes on the Interim U.S. Guidance for Monitor- ing and Movement of Persons with Potential Ebola Virus Exposure, Ebola (Ebola Virus Disease) (Feb. 19, 2016) http://www.cdc.gov/vhf/ebola/exposure/monitoring-and- movement-of-persons-with-exposure.html. 99 Id. 100 Joel Achenbach, Brady Dennis, & Lena H. Sun, No Unity Over Ebola Monitoring of Travelers, wash. POsT, Oct. 27, 2014; see also Mark Berman, Shifting Policies, Uncertain Rules: Ebola, New York and New Jersey, wash. POsT, Oct. 28, 2014; Lisa Schnirring, CDC, Some States Differ Over Quarantine For Ebola Responders, University of Minnesota, Centers for Infectious Disease Research & Policy, http://www.cidrap.umn.edu/news-perspective/2014/ 10/cdc-some-states-differ-over-quarantine-ebola-responders (Oct. 27, 2014). 101 Press Release, Governor Chris Christie, Governor Andrew Cuomo and Governor Chris Christie Announce Additional Screening Protocols for Ebola At JFK and Newark Liberty International Airports (Oct. 24, 2014), available at http://nj.gov/governor/news/news/552014/ approved/20141024b.html. 102 See davId c. rOse, A Guidebook for Including Access Management in Transportation Planning, Legal Research Digest No. 548, National Cooperative Research Program, Transportation Research Board of the National Academies of Sciences, Engineering and Medicine, Washington, D.C., (2005), p. 75. 103 23 C.F.R. pt. 470, subpt. A, App. A (emphasis added). 104 cOnn. agencIes regs. § 14-312-1 (2016).

14 more loosely define “traffic generators” as “employ- ment centers, commercial centers, regional or area shopping centers, transportation terminals.”105 MTGs can typically be broken into three major groups: public facilities, private facilities or busi- nesses, and public transit or roads. • Public facilities may include government cen- ters, universities, and transportation terminals. • Private facilities or businesses may include shopping centers and other private businesses, housing developments, and private schools. • Public transit or roads will include major thor- oughfares or highways and major arteries of public transit in metropolitan areas. C. State Power to Close Public Facilities, Private Facilities or Businesses, and Other Major Traffic Generators 1. Governors’ Powers Almost all states grant their governors broad powers to address declared emergencies or PHEs, including the authority to close or take control of public resources, businesses, roads, and other MTGs. For example, Idaho’s governor may “suspend the provisions of any regulations prescribing the proce- dures for conduct of public business that would in any way prevent, hinder, or delay necessary action in coping with the emergency.”106 Illinois allows its gover- nor to “take possession of property for and on behalf of the state” to include “airplanes, automobiles, trucks, trailers, buses, and other vehicles; coal, oils, gasoline, and other fuels and means of propulsion.”107 Michigan gives its governor the power to issue orders, rules, and regulations “providing for the control of traffic, includ- ing public and private transportation [ . . . ; ] occu- pancy and use of buildings and ingress and egress of persons and vehicles may be prohibited or regulated; control of places of amusement and assembly and of persons on public streets and thoroughfares; estab- lishment of a curfew.”108 Such statutes would likely allow the governor to close MTGs during an IDO. The general wording of some state laws estab- lishes broad powers and would presumably apply regardless of whether the MTG is publicly or privately owned. Some states, however, directly address this distinction. For example, Delaware law states that “during an emergency or disaster,” the governor may “subject to any applicable require- ments for compensation, utilize any private, public or quasi-public property if necessary to cope with the emergency or disaster.”109 Although rare, some states specifically provide for the effective closure of roads by a governor. For example, during a declared state of emergency, Dela- ware’s governor may “[r]estrict the use or operation of motor vehicles on Delaware roads, including but not limited to, highways, express highways, road- ways, and private roads.”110 These “driving bans” can range from encouraging individuals to stay off roads to restricting all persons from operating a vehicle on Delaware roads, with the exception of “first respond- ers and essential personnel.”111 2. State Health Official’s Powers Many states provide their state health officials or the state’s Board of Health with the authority to restrict activity or close facilities as may be neces- sary to control the spread of disease. Often, this authority may only apply to a specific facility identi- fied as a threat to the public health during routine health investigations and inspections. For example, Illinois’ Department of Health may order a place to be closed and made off limits to the public to prevent the probable spread of a dangerously contagious or infectious disease [ … ] until such time as the condition can be corrected or the danger to the public health elimi- nated or reduced in such a manner that no substantial danger to the public’s health any longer exists.112 Many times, however, states contemplate closures by state health officials that spread beyond an isolated facility and could include multiple MTGs. In this way, public health statutes may have the practical effect of allowing closures of MTGs. For example, New Hampshire’s health official may, with approval of the Governor, close, direct, and compel the evacuation and decontamination of any building located within the state that is accessible to the public, such as businesses, primary and secondary schools, and universities, regardless of whether publicly or privately 105 John J. Delaney, Stanley D. Abrams, Frank Schnidman, Patricia E. Salkin, Julie A. Tappendorf. Update, Handling the Land Use Case: Land Use Law, Practice & Forms 3d. (2016). 106 IdahO cOde ann. § 46-1008 (5)(a) (2016); See also md. cOde ann., Pub. safeTy, § 14-3A-03 (The governor may “order the evacuation, closing, or decontamination of any facility”). 107 20 IL. cOmP. sTaT. 2305/2 (a) (2016). 108 mIch. cOmP. Laws ann. § 10.31 (2016). See also haw. rev. sTaT. § 127A-13 (b)(18) (stating in a declared emergency the governor may “fix or revise the hours of government business”). 109 deL. cOde ann. tit. 20, § 3116 (2016). 110 deL. cOde ann. tit. 20 § 3116 (b)(12) (2016). 111 Id. 112 20 IL. cOmP. sTaT. 2305/2 (2016). See also mIss. cOde ann. § 41-23-5 (2016) (“The State Department of Health shall have the authority to investigate and control the causes of epidemic, infectious and other disease affecting the public health, including the authority [ … ] to exercise such physical control over property and individuals as the department may find necessary for the protection of the public health.”).

15 owned, when there is reasonable cause to believe the building may present an imminent danger to the public health.113 New Jersey’s Health Commissioner may take imme- diate possession of any facilities needed to respond to a PHE, including roads, public areas, and carriers.114 Missouri’s state health official has similar powers, as do its local health authorities, who are all “empow- ered to close any [ … ] place of public or private assembly when, in [their] opinion [ … ,] the closing is necessary to protect the public health.”115 Finally, some states specify the ability to close specific facili- ties, such as schools. Ohio grants its city boards of health the ability to “close any school and prohibit public gatherings for such time as is necessary” when there is “an epidemic or threatened epidemic, or when a dangerous communicable disease is unusu- ally prevalent.”116 D. State Transit Authorities or Transportation Departments State departments of transportation are typically vested with the right to shut roads and highways for routine maintenance, accident investigation, or during weather emergencies.117 For example, Colo- rado states that the “department of transportation has authority to close any portion of a state highway to public travel.”118 Protocols used for such routine closures may prove instructive if a governor or other state official closes MTGs for a PHE or IDO. E. Case Study: Public Health Policies and the 1918–1919 Influenza Pandemic The Spanish influenza outbreak of 1918–1919 was one of the deadliest pandemics in human history. The virus infected an estimated 500 million people, roughly 33% of the world population.119 Of those 500 million infected individuals, at least 50 million (more than 3% of the world population) died.120 Within the United States alone, 675,000 people died of the illness.121 Although most conta- gious disease outbreaks have a clear geographic origin, the 1918–1919 pandemic arose nearly simultaneously in the United States, Europe, and Asia in March of 1918.122 After the outbreak appeared to subside, a second wave of the pandemic began in September of 1918, and lasted until November of that year.123 In many parts of the world, a third wave of the pandemic erupted during the winter of 1918–1919.124 The pandemic posed a daunting challenge for American public health experts, who worked furi- ously and largely unsuccessfully to contain the outbreak.125 By 1918, public health was a young but confident field. Scientists had discovered germs in the 19th century. By 1918, experts had discovered the bacteria that caused many then- prominent illnesses such as cholera and TB.126 Scientists still had limited understanding of viruses and were not able to isolate the microbe that caused influenza until 15 years after the pandemic.127 This failure was costly; an influenza vaccine could not be developed until the virus was isolated.128 Vaccination is 113 N.H. rev. sTaT. ann. § 141-C:16-a (2016). 114 N.J. sTaT. ann. § 26:13-9 (2016). 115 mO. cOde regs. ann. tit. 19, § 20-20.050 (2016). 116 OhIO rev. cOde ann. § 3707.26 (2016). See also mO. cOde regs. ann. tit. 19, § 20-20.050 (2016). During the 2014 flu season, many local school boards in regions across the U.S. decided to close schools prior to winter break due to high absenteeism, with the hope that it would help curb the flu’s spread. See Aamer Madhani and Ariel Cheung, Influenza Walloping Schools in South, Midwest, usa TOday, Dec. 18, 2014, available at http://www.usatoday. com/story/news/nation/2014/12/17/flu-school-closings- georgia-illinois-north-carolina/20545821/. Such measures are unusual but provide a constructive example of what MTG closure for an IDO may look like. For further information, see The Centers for Disease Control and Prevention, Technical Report for State and Local Public Health Officials and School Administrators on CDC Guidance for School (K-12) Responses to Influenza during the 2009–2010 School Year, available at http://www.cdc. gov/h1n1flu/schools/technicalreport.htm?s_cid=cs_000. 117 cO. rev. sTaT. ann. § 42-4-106 (5)(a)(I)(a). (“The department of transportation may close any portion of a state highway for use during storms or other dangerous driving conditions, during maintenance operations, or whenever the department considers a road closure neces- sary for the protection and safety of the public.”). 118 mInn. sTaT. § 325E.64(2) (2016). 119 Jeffery K. Taubenberger & David M. Morens, 1918 Influenza: the Mother of All Pandemics, 12 emergIng InfecT. dIs. 15, 15 (Jan. 2006). 120 Id. 121 United States Department of Health and Human Services, The Great Pandemic: The United States in 1918– 1919, https://search.hhs.gov/search?q=the+great+pandem ic+%3A%3A+the+united+states+in+1918-1919&site=HH S&entqr=3&ud=1&sort=date%3AD%3AL%3Ad1&output =xml_no_dtd&ie=UTF-8&oe=UTF-8&lr=lang_en&client =HHS&proxystylesheet=HHS (last visited February 5, 2017) (Topical searches). 122 Jeffery K. Taubenberger & David M. Morens, 1918 Influenza: the Mother of All Pandemics, 12 emergIng InfecT. dIs. 15, 16–17 (Jan. 2006). 123 Id. 124 Id. 125 Nancy Tomes, “Destroyer and Teacher”: Managing the Masses During the 1918–1919 Influenza Pandemic, (Suppl. 3) 125 Pub. heaLTh reP. 48, 49 (2010). 126 Id. at 50. 127 Id. 128 Claude Hannoun, The Evolving History of Influenza Viruses and Influenza Vaccines, 12(9) exPerT rev. Of vaccInes 1085, 1085 (Sept. 12, 2013).

16 now a central element of authorities’ efforts to fight influenza.129 In attempting to fight influenza, public health authorities leaned heavily on the strategies used to fight TB, diphtheria, polio, and other infectious diseases of the time. These strategies included promoting personal hygiene,130 quarantining and isolating sick people,131 and using social distancing measures to limit the flow of people through spaces where the contagious diseases spread.132 Unfortunately, these strategies were difficult to effectively implement during the 1918–1919 influ- enza pandemic, and public health authorities strug- gled to stop the spread of the outbreak. Scholars note that influenza, a respiratory virus spread in public spaces, is a “crowd disease.”133 Stopping the spread of a crowd disease was challenging in the years 1918 and 1919; because of rapid U.S. urban- ization, people spent more time surrounded by large numbers of people.134 In Boston and Philadelphia, the outbreak spread so quickly that public health authorities were forced to ban almost all forms of public gatherings. Authorities closed schools, saloons, theaters, and some stores.135 In other cities, such as New York and New Orleans, the outbreak developed more slowly. Public health authorities in less-devastated cities adopted social distancing measures that were less disruptive to daily life.136 These cities allowed businesses to remain open, but ordered them to stagger their operating hours to minimize the size of crowds in streets and on subways and streetcars.137 Other cities attempted to distinguish between essential and nonessential businesses, allowing some types of establishments to remain open while ordering others to shut down.138 The measures taken by public health authorities during the 1918–1919 influenza outbreak were insufficient to stop the virus from killing millions around the world, including hundreds of thousands of Americans. Health authorities rightly encouraged quarantine and isolation for infected people and mandated social distancing measures. The efforts to halt the outbreak, however, were compromised by World War I, the lack of a vaccine, and the speed with which the outbreak was traveling around the world. F. Additional Legal Issues with Closures of Major Traffic Generators Although authority exists for governors, state health officials, and others to close MTGs during a declared emergency or PHE, closures can have a significant impact on those subject to them. Closing businesses and other facilities can have a detrimen- tal economic impact from the individual to the state level.139 Thus, closures are rare and raise numerous legal issues, including questions of “compensable takings” where private property is concerned. For the state to protect the public health of its citizens, it may, at times, become necessary for the state to close public property or take control over privately owned property. Whenever the state chooses to seize or take control over private prop- erty, issues of due process arise. The Fifth and Four- teenth Amendments of the U.S. Constitution provide that neither the federal government nor the states may deprive citizens of “life, liberty, or property without due process of law.”140 State laws that grant the governors or state health officials the authority to close an MTG, including those that are privately owned, thus give rise to issues of due process. States must provide for due process of law if they choose to take control over private property, even if that action is for the purpose of protecting public health.141 Many states include provisions in their state consti- tutions that specify the government’s limited ability to seize private property and compensation proce- dures.142 At least one state has recognized that the 129 Nancy Tomes, “Destroyer and Teacher”: Managing the Masses During the 1918–1919 Influenza Pandemic, (Suppl. 3) 125 Pub. heaLTh reP. 48, 61 (2010). 130 Id. at 50. 131 Id. 132 Id. at 52. Part of the difficulty was the pandemic coin- cided with World War I. The flu spread between soldiers in the training camps, the front lines, and home with soldiers, helping the disease spread around the world. Carol R. Byerly, The U.S. Military and the Influenza Pandemic of 1918–1919, 125 (Suppl. 3) Pub. heaLTh reP. 82, 86 (2010). 133 Nancy Tomes, “Destroyer and Teacher”: Managing the Masses During the 1918–1919 Influenza Pandemic, (Suppl. 3), 125 Pub. heaLTh reP. 48, 51–52 (2010). Diseases spread through ineffective plumbing or poor kitchen hygiene are “home diseases.” Id. 134 Id. at 52. 135 Id. 136 Id. at 53. 137 Id. 138 Id. at 54. 139 One study estimated that the February 2010 snow- storm and related closures cost New York a projected $700 million in lost retail sales and wages. American Highway Users Alliance, The Economic Costs of Disruption from a Snowstorm, http://www.highways.org/wp-content/uploads/ 2014/02/economic-costs-of-snowstorms.pdf. 140 U.S. cOnsT. amend. V; U.S. cOnsT. amend. XIV. 141 The Supreme Court has upheld eminent domain so long as it is for a public use, including economic develop- ment. Kelo v. City of New London, Conn., 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 438 (2005). 142 See, e.g., ca. cOnsT. art. 1, § 19 (“Private property may be taken or damaged for a public use [ … ] only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner[.]”).