The time has come for housing reform

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When the COVID-19 pandemic hit New Hampshire last year, it’s unlikely that even the cleverest among us thought, “You know, this is going to turn people against local housing ordinances.”

Yet here we are in the summer of 2021, and housing is tied with COVID as the No. 2 concern of Granite Staters, according to a July University of New Hampshire poll. 

Granite Staters are most concerned about “jobs and the economy,” with 26% naming it their top concern, according to the July 26th poll. Ten percent of respondents cited “housing” as their top concern, tying it with COVID-19 for second place. 

That’s a five-fold increase from last July, when 2% of respondents named housing as their No. 1 concern. 

Surely this is related to the huge spike in home and rental prices that has made finding a place to live in New Hampshire feel like a Mad Max-style battle for a vanishingly scarce resource. 

Granite Staters aren’t quite donning leather outfits and fighting each other with home-made weapons over apartments and houses. Yet. But the stories from the real estate front lines aren’t pretty. Bidding wars have priced all but the best-financed families almost entirely out of the home and rental markets. 

Old timers tell stories of bygone days when high school graduates could get an apartment soon after landing their first job, and homes could be bought by people who didn’t own yachts and condos in Barbados. 

Children shake their heads, refusing to believe that such a Shangri-La ever existed. 

“Tell me, grandfather, of the time you rented an apartment without having to sell an organ on the black market.”

But the numbers don’t lie. As we noted last month, the median rent for a two-bedroom apartment has gone up 24% in the past five years. The median home price in New Hampshire just surpassed $400,000.

The record rise in home prices and rents has left people feeling helpless, frustrated and angry. They’re watching their housing dreams evaporate before their eyes, and they know something is wrong. They might not know what, but they sense that this wouldn’t happen in a normal market.

And they’re right. The COVID-fueled surge in demand has collided with a NIMBY-fueled housing shortage. The result has been record price increases that the market can’t correct because the numerous local ordinances that caused the shortage remain in place.

For a recently reported example, see the excellent New Hampshire Sunday News story on some of the cases taken up by the new Housing Appeals Board. 

A Francestown couple wanted to subdivide some of their own property so their children could build homes on it and all of them could live together on the family land. People have been doing this in New Hampshire since colonial times. But the town refused to approve the changes. 

The family took the case to the Housing Appeals Board, which ruled in their favor in three months. A similar case took about 20 months to go through the court system. 

Stories like this are common, and they raise serious questions about the way we regulate housing in the “Live free or die” state. When you can’t even build a home for your own children on your own land, is it really your land anymore? 

Towns increasingly act like all land belongs to the community, not to the property owners. In the Francestown case, officials wouldn’t approve the family’s proposal in part because the officials thought the land would look better with more trees. They demanded the family replace trees that had been previously — and legally — cut. 

This kind of regulatory overreach is how the state wound up with a housing shortage.

Things are so bad that housingmight be at the point where Stein’s Law kicks in. 

“If something cannot go on forever, it won’t,” economist Herb Stein mused. Housing prices cannot rise forever. At some point, people will demand solutions. We seem close to that point.

Our poll in May found that people are willing to relax local housing regulations in exchange for lower prices. A majority (51%-29%) support relaxing local regulations so developers can build more rental housing, and a plurality (45%-34%) support relaxing local regulations so developers can build more homes. 

The pandemic has exposed numerous unnecessary and harmful regulations, from prohibitions on telemedicine to bans on sidewalk dining. Local anti-housing ordinances can be added to the list. 

People want more housing, and rolling back bad ordinances is the way to get it. The only question is, who will have the political will to push for changes?  

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New Hampshire is the only New England state not to allow cocktail delivery

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In an unexpected twist, New Hampshire has emerged from the COVID-19 pandemic as the only New England state that does not allow delivery cocktails.

In Boston, Bangor and Burlington, you can order a Cuba Libre with your delivery dinner. But not in Bartlett, or anywhere else in New Hampshire.  

Dozens of states — including the rest of New England — allowed restaurants to include beer, wine and cocktails in delivery orders when COVID-19 emergency orders closed restaurant dining rooms. New Hampshire allowed beer and wine, but not cocktails. 

When emergency orders were lifted, every other New England state extended cocktail delivery until the middle of next year or later. 

Maine, Massachusetts and Rhode Island allow delivery cocktails through at least the first quarter of 2022. Vermont’s allowance runs through June of 2023. Connecticut’s expires in June of 2024. 

They are among 30 states that have allowed restaurants to deliver cocktails, according to the Distilled Spirits Council. Fourteen states granted temporary allowances, and another 16 passed laws to make delivery permanent.

Only three states that allowed cocktails to go during the pandemic — New York, North Carolina and Pennsylvania — did not extend those emergency measures. 

Maybe in the next legislative session, the “Live free or die” state can catch up with the rest of New England on deregulating mixed drink delivery. 

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State’s housing shortage has driven rents up 24% in five years

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New Hampshire’s severe housing shortage continues to drive prices to record highs and put rentals and single-family homes out of reach for many families. 

  • The median price of a two-bedroom rental in New Hampshire has risen 24% in the last five years and 43% since 2011, reaching a record high of $1,498 a month (including utilities) this year, the New Hampshire Housing Finance Authority’s annual rental survey has found. 
  • The median price of a two-bedroom rental rose 6% last year, and the price for all rentals rose 7%. 
  • In Hillsborough and Rockingham Counties, the median rent is more than $1,600 a month (including utilities). 
  • The vacancy rate for two-bedroom apartments is down to 0.6% and the rate for all units is 0.9%. (A healthy vacancy rate is around 5%.) In every county, the vacancy rate is below 1% for two-bedroom units and below 2% for all units. No New Hampshire county has had a vacancy rate above 4% for all units since 2017. 
  • The percentage of New Hampshire two-bedroom rental units considered affordable to the median-income renter household (meaning the household would spend no more than 30% of its income on rent) is just 13%.
  • Single-family home prices are also hitting records. The median home price in Rockingham County hit $509,850 in June. Statewide, it hit $409,000.
  • In 2012, homes spent an average of more than 125 days on the market. In June, homes spent an average of 18 days on the market. 
  • In 2012, there was a more than 10-month supply of inventory for single-family homes. In June, it was down to 1.2 months. 

 The state’s housing shortage is not new. It’s been a well-known problem for decades. It has persisted despite numerous state-level efforts to address it. But those efforts, often focused on housing subsidies or task forces, have made little impact. The Housing Appeals Board, the most promising recent reform, just started its work this year. And its focus is on enforcing existing laws and rules to ensure that local governments don’t overstep their legal authority.

The shortage persists, and has become worse, because it is largely a product of local regulations that restrict housing development. Local ordinances often outlaw small homes on small lots, severely restrict mixed-use development, and make it nearly impossible to build multi-family buildings even in areas where they are allowed. 

The cumulative result over many decades is a massive shortage of housing. Estimates vary, but the shortage generally is pegged at approximately 20,000 housing units. The newly formed New Hampshire Council on Housing Affordability identified a critical need for 13,500 housing units by 2024. 

Whatever the actual number is, filling the need will be no less challenging than it has been in recent decades — as long as local governments continue to needlessly restrict new home construction and deny needed developments at the urging of a handful of anti-housing activists. 

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Freedom and the New Hampshire Advantage

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New Hampshire’s six-year run of business tax cuts should have made the state’s corporate income tax rate the second-lowest in New England. But a funny thing happened along the way. New Hampshire was joined by an unexpected rival. 

When the succession of cuts began in 2015, New Hampshire’s Business Profits Tax (BPT) rate was 8.5%, making it the third-highest corporate income tax in New England. Only Maine’s 8.93% rate and Connecticut’s 9% rate were higher. 

After the passage of the current state budget, New Hampshire’s BPT rate is down to 7.6%, a 10.5% cut in six years. (Legislators cut the Business Enterprise Tax by 27%.)

That makes New Hampshire’s rate lower than the top rate in Vermont (8.5%), Maine (8.93%) and Massachusetts (8%). 

But Connecticut, beset with fleeing businesses and a dwindling population, took measures to stop its own bleeding. It reduced its corporate income tax rate from 9% to 7.5%. 

Rhode Island’s rate has remained at 7% the entire time.

(Maine and Vermont have graduated corporate tax rates. Maine’s lowest corporate tax rate is 3.5%. Vermont’s is 6%.)

Because Connecticut lowered its corporate income tax rate by 1.5 percentage points, New Hampshire’s rate wound up moving down only one place, rather than two, among the New England states. 

This helps to illustrate an important point. States don’t act in a vacuum. 

Businesses aren’t trapped inside any jurisdiction’s borders. It’s a free country, and they can move if they find another location more hospitable. Which they sometimes do. Just ask California.

If each state could erect its own iron curtain, just imagine how high corporate and personal tax rates would be. 

But because it’s a free country, states sometimes find it in their best interest to lower rates to make themselves more attractive. 

That’s why Connecticut and New Hampshire weren’t the only places to lower corporate tax rates in the last six years. A few examples:

  • New York lowered its rate from 7.1% to 6.5%. 
  • Washington, D.C., dropped its rate from 9.4% to 8.25%. 
  • Florida cut its rate from 5.5% to 4.4%. 
  • Iowa slashed its rate from 12% to 9.8%. 
  • North Carolina cut its rate in half, from 5% to 2.5%. 

Some lawmakers prefer to ignore other states and pretend that corporate tax rates are simply a lever for raising revenue from existing businesses. Raise the lever, raise the revenue. Lower the lever, lower the revenue.

But people inside and outside a state’s borders react when those levers are raised or lowered. That’s a big reason why state tax rates change. 

This year, five states states have reduced business tax rates. Ten states have reduced individual income tax rates. The total number of states to reduce either business or individual income taxes is 11, not 15, though, as some states reduced both. 

Some notable examples:

  • Indiana decreased its corporate income tax rate from 5.25% to 4.9%
  • Idaho reduced its corporate income tax rate from 6.925% to 6.5%, retroactive to Jan. 1.

These follow numerous changes made last year, from Arkansas eliminating its top income tax bracket to Tennessee eliminating its tax on interest and dividends to New York eliminating and Illinois reducing its capital stock tax.

It’s true that some states raise rates. New Jersey added a new top corporate tax rate, going from 9% in 2015 to 11.5%. Of course, New Jersey also has earned the title of “Most Moved From State” for three years running (and it’s particularly good at losing higher-income people). In a free country, mistakes will be made. 

And in a free country, states compete for people, entrepreneurs and businesses. 

Freedom made New Hampshire an economic marvel. Recognizing that people are free to live wherever they want, state policymakers for decades have focused on making the Granite State as attractive as possible.

It has worked beautifully. New Hampshire’s economic growth has surpassed every other New England state’s, and the national average, since the late 1970s.

With a booming economy came a growing population, which has enhanced the state’s quality of life and kept New Hampshire from becoming Vermont — a dying state that pays people to move there. 

When people are free, there’s a limit to how bossy a state can be. And there are rewards for offering people more personal, political and economic autonomy. 

New Hampshire has figured this out. Other states are catching on, just as technology has made Americans more mobile than ever before.

The competition is not over. It’s just beginning. 

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The unvaccinated account for 98% of N.H. COVID deaths since Feb. 1, state data show

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Since the beginning of February, unvaccinated individuals have accounted for 99% of New Hampshire’s COVID-19 cases and 98% of deaths, according to state data. The numbers indicate how extremely effective vaccines have been at fighting COVID-19 in the state.

From February 1 through June 23, the state recorded 33,703 COVID-19 cases, according to the state’s Joint Information Center, part of its Emergency Operations Center. Of those, only 349 involved people who had been fully vaccinated. That’s 1.03% of the total.

During the same period, 236 people have died from COVID-19. Only five of those were fully vaccinated. That’s 2.1% of the total.

Only 15 fully vaccinated individuals have been hospitalized for COVID-19 in New Hampshire,  according to the Joint Information Center.

Because of the way the state tracks hospitalizations, an exact percentage breakdown for hospitalized patients is not possible. The state records whether a patient was hospitalized at the time the case was reported to the state, but not whether hospitalization was required later. However, the state does track how many vaccinated people have required hospitalization for COVID-19 at any point. That number has totaled only 15. 

The Joint Information Center sets February 1 as the approximate date by which Granite Staters began to become fully vaccinated. 

A University of New Hampshire poll released Thursday reports that 25% of Granite Staters say they probably or definitely will not get the vaccine. 

Among that group, 56% say they don’t believe it will be effective at stopping them from getting COVID. 

The state data show that, contrary to this view, the vaccines are highly effective at reducing the risk of infection, serious illness and death from the coronavirus. 

The state figures also are similar to national data released last week. An Associated Press analysis of COVID-19 data from May found that 99.2% of COVID-19 deaths in the United States were among unvaccinated people. 

The difference between the 99% and 98% rates for New Hampshire cases and deaths, respectively, is not statistically significant, Beth Daly, chief of the state Bureau of Infectious Disease Control, said. (Dr. Daly’s comment was received after press time and was added to this story after publication.)

“The numbers are not really statistically different because you are comparing a small number (236) to a larger one (33,703).

“This is an issue of small numbers when you compare a denominator of tens of thousands to a denominator of just a few hundred. The confidence interval of 5 divided by 236 is from <1% to 5%, so the 1% observed in the calculation of 349 divided by 33,703 is not statistically nor meaningfully different from the proportion of deaths.

“To say it another way,  the proportion of vaccine breakthrough infections is statistically the same/no different from the proportion of vaccine breakthrough deaths. They are also not substantively different.”

 

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Supreme Court refusal to hear N.H. tax case puts all remote workers’ cross-border income in jeopardy

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The U.S. Supreme Court on Monday declined to hear New Hampshire’s lawsuit challenging the constitutionality of a Massachusetts rule taxing non-resident remote workers. The decision puts remote workers anywhere in the world at risk of having their incomes permanently taxed by the state where their employer is located. 

“It’s hard to see a limiting principle that would restrain states from taxing remote workers going forward, particularly given the Biden administration’s brief to the court arguing that states have the authority to do that,” Josiah Bartlett Center for Public Policy President Andrew Cline said. 

The Biden administration argued in a brief to the court that because remote workers benefit from government services provided to their employers, a “telecommuting employee’s physical location thus need not map precisely onto the location of the governmental services needed to support that employee’s work.”

Massachusetts’ rule was intended to be temporary for the duration of the COVID-19 emergency. However, six states already have permanent rules that tax the incomes of telecommuters who work from home for their own convenience. The Supreme Court’s decision to let Massachusetts’ rule stand not only keeps these rules in place, but could encourage the further expansion of remote worker taxation.

New York, Connecticut and four other states have what are known as “convenience of the employer” (COTE) rules that tax remote workers’ incomes if they work out-of-state for their own convenience, rather than out of necessity. 

Under these rules, if a remote worker has to work in another state, his or her income is not taxed. But if the worker chooses to work in another state purely for his or her personal convenience, the income is taxed. Arkansas, Connecticut, Delaware, Nebraska, New York, and Pennsylvania had COTE rules before the pandemic. The Tax Foundation has a good COTE explainer here. 

The Supreme Court’s refusal to hear New Hampshire’s case leaves such COTE taxation of remote workers intact. But it also has the strong potential to encourage blanket remote worker taxation under the Biden administration’s theory that states may tax any employee of a company located within their borders because state services benefit both the company and all of its employees.

The Biden administration’s brief could even prompt local governments to tax remote worker incomes. It specifically mentioned local services such as roads and fire protection as justifying the taxation of remote workers. 

Refusing to hear New Hampshire’s case does not mean that the issue is settled, Edward Zelinsky, professor at the Benjamin Cardozo School of Law in New York City, told the Josiah Bartlett Center. 

“I am disappointed that the Supreme Court would not hear this case but the Court’s denial is the beginning not the end of the process,” Zelinsky said. “It will now be necessary for individual taxpayers to start their own challenges to New York’s and Massachusetts’ unconstitutional taxation of remote workers. I am confident that these challenges will soon begin.”

Professor Zelinsky has sued New York over a similar remote taxation policy. He filed an amicus brief in New Hampshire’s case. The states of Connecticut, Hawaii, Iowa and New Jersey also filed briefs supporting New Hampshire. 

Writing in March for the American Bar Association, two Louisiana attorneys argued that a U.S. Supreme Court ruling on remote taxation is needed because the increasing prevalence of remote work is likely to generate more competition among states for revenues generated by the incomes of remote workers. 

“If states continue to struggle with declining tax revenues in 2021 and 2022, there will likely be even fiercer competition for those tax revenues between states where the employer and its primary offices are located and those whose residents, prior to the pandemic, regularly commuted to those states for work.”

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Three key takeaways from the ’22-23 budget

Gov. Chris Sununu has signed the 2022-23 state budget that the Legislature passed on Thursday. Here are three key takeaways for those looking for a quick take on the state’s two-year spending plan. (We did a longer summary here.)

  1. TAX CUTS     With this budget’s business tax rate reductions, legislators have reduced the Business Profits Tax by 10.5% and the Business Enterprise Tax by 27% since 2015. Raising the filing threshold for the Business Enterprise Tax from $200,000 to $250,000 provides further tax relief for small businesses. These modest changes should help New Hampshire become more economically competitive. Though the state is rated as having a top ten business tax climate, it still has high corporate taxes. New Hampshire’s combined state and federal business tax burden is ranked 15th in the country by the Tax Foundation and lately has ranked higher than Massachusetts, Connecticut and Rhode Island. 
  2. EDUCATION FREEDOM ACCOUNTS     The budget makes New Hampshire the 10th state to adopt an Education Savings Account program. The bill’s Education Freedom Accounts would let families with incomes of no more than 300% of the federal poverty level use their state adequate education grant to open a savings account for approved educational purchases. The Josiah Bartlett Center’s analysis projects that approximately 966 students would use an EFA in its first year and 2,335 in the second year. Local school district enrollment would decline by a projected average of 2.65 students (0.8%) in the first year and 6.63 students (2%) in the second year. Taxpayers would save approximately $1.85 million in the first year and $4.8 million in the second year. 
  3. SPENDING     The budget reduces the General and Education Fund baseline spending by about $172 million, or 3.1%. Budget writers increased from 22% to 30% the portion of Meals and Rooms Tax revenue that goes to local governments and created a dedicated fund for this purpose. Reserving this $188 million in revenue for local governments makes it unavailable for state use in the future, effectively lowering General Fund baseline spending. The budget ratchets state baseline spending down a bit after a decade of spending increases.
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How the state budget enhances the Legislature’s emergency powers

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The final House-Senate compromise added to this year’s state budget was a deal to give the Legislature more power during a declared state of emergency. This was an issue of heated debate, as many legislators thought the House and Senate needed a more active role in governing during a state of emergency. The compromise doesn’t go as far as some House members wanted, but it does enhance legislative authority in some important ways.

The Legislature’s existing emergency powers

Under existing law (RSA 4:45), both the governor and the Legislature have the power to declare a state of emergency. The Legislature can exercise this power by passing a concurrent resolution of both the House and Senate.

Once a state of emergency is in effect, the Legislature has the power to terminate it by passing a concurrent resolution in each chamber. 

One might have thought that the Legislature was powerless to act once an emergency had been declared. That is not the case. If a majority of legislators believes a state of emergency is no longer justified, or never was, it can convene and vote to end the emergency at any time. 

If the Legislature votes to end a state of emergency, the governor has the authority to declare “a new emergency for different circumstances.” That is, once the Legislature has ended a state of emergency, the governor cannot declare the same emergency for the same reasons again. Any new emergency would have to be based on “different circumstances.”

What the Legislature doesn’t have the authority to do under existing law is repeal a specific emergency order other than the emergency declaration itself. This was a big frustration for some House Republicans during the COVID-19 emergency. It also doesn’t have a process in place for reviewing states of emergency. It can convene itself at any time, but there is no calendar or schedule in place to generate periodic reviews automatically. 

Emergency powers enhanced in the budget

The Committee of Conference amendment rewrites RSA 4:45 to enhance legislative emergency powers in three specific ways.

  1. It requires the governor to notify the House and Senate of “impending” emergency orders “as soon as practicable” and to “provide a description of such orders.” This notification requirement ensures that legislative leadership will be informed prior to a declaration of emergency.  
  2. It gives the Legislature the power to terminate “any emergency order” in addition to the emergency declaration. This creates essentially a line-item veto for the Legislature. The General Court can keep a state of emergency in place but rescind any particular emergency order it doesn’t like. Currently, its only option is to repeal the state of emergency itself. Under the proposed change, legislators could partially co-manage an emergency by negotiating with the governor over the orders it would like to see. With the power to repeal any order, lawmakers would have a significantly increased say in what orders are made. 
  3. It requires the governor to call a legislative session 90 days into a state of emergency, and then every 90 days for the duration of the emergency if it lasts longer than the first 90 days. At each of these sessions, the Legislature is required to vote by concurrent resolution on whether to terminate the state of emergency. This forces a legislative vote every 90 days on whether to maintain or repeal a state of emergency.

These changes are not as comprehensive as some House members would have liked. But they elevate the General Court’s role during a state of emergency from spectator to co-manager. 

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For occupational and business regulations, the pandemic has brought mostly marginal changes

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When PepsiCo opened the first Pizza Hut in the Soviet Union in 1990, one challenge the company had was convincing Soviet bureaucrats that the cooks didn’t need to be trained chefs. 

“This is something the Russians don’t understand,”Andrew Rafalat, Pizza Hut’s regional director for the Soviet Union and Eastern Europe, told The New York Times in 1990. ”You don’t want trained cooks. You want kids off the street. Within a few weeks, they are the best pizza cooks in the world.”

Obviously, New Hampshire isn’t close to being the Soviet Union. (Burlington, Vt., is another story.) But New Hampshire is not as “live free or die” as Granite Staters would like to believe. 

Too many laws and ordinances here would look familiar to the Moscow bureaucrats who thought pizza cooks ought to be highly educated, credentialed and government approved. 

Recent legislation offers multiple examples.

Current law requires bars and restaurants to apply to the Liquor Commission for permission to serve drinks in common spaces such as sidewalks or parking lots, then also get permission from their local government. 

There’s no need for this double approval. Permission from the local government, is enough. Yet it took a global pandemic to convince lawmakers that this requirement should go.  

When the pandemic hit, already short-staffed nursing homes couldn’t fill positions to assist nurses because there weren’t enough licensed nursing assistants. 

Imagine telling the family of a nursing home patient that you’re sorry, but their loved one has to go with less care because the state has decreed that no care at all is better than care from someone who lacks the most prestigious credential. 

It took an emergency order to allow nursing homes to hire and quickly train unlicensed nursing assistants (called temporary health partners) to work under the supervision of licensed nurses. 

Senate Bill 155, which a committee of conference approved with amendments on Monday, would fix those and some other burdensome regulatory requirements.

Senate Bill 133, also approved by a committee of conference on Monday, addresses a few other occupational licensing laws. One fix is to open a path to licensure for the temporary health partners allowed in SB 155. 

Anyone who worked as a temporary health partner for at least 100 hours as a result of the pandemic would be considered as having completed a nursing assistant training course and would be eligible for licensure as a nursing assistant.

Associate teachers at child day care centers would get a similar break if SB 133 becomes law. The bill would allow 30 hours of “documented life experience” to substitute for 30 hours of “training in child growth and development.”

Also getting a break would be small restaurants and cafes. State law requires licensed food service establishments to have a “Certified Food Protection Manager.” The bill would let the CFPM (that doesn’t sound Soviet at all) for small operations be on call. 

The bill also would include psychologists in the list of medical professionals who can engage in telemedicine. (It’s crazy that this wasn’t allowed before.)

Then there are kids’ lemonade stands. Licensing kids’ lemonade stands would seem like a Moscow idea. But local municipal ordinances that require food vendors to obtain permits or licenses usually don’t have an exemption for children selling soft drinks in their own yards. 

Though there have been no news stories of police shutting down kids’ lemonade stands in New Hampshire, technically the stands are illegal if ordinances don’t specifically exempt them.

That’s why House Bill 183 would create a state-level exemption for children age 14 and younger who sell soft drinks from their own property. It establishes under state law that the only permission kids need to set up a lemonade stand is from their parents. (The House concurred with the Senate version last week and awaits Gov. Chris Sununu’s signature.)

These small changes would make New Hampshire a bit freer by slightly reducing the level of government permission needed for certain commercial practices. Other bills have addressed other areas where the pandemic revealed certain regulations to be entirely unneeded, even harmful. 

And yet, as this legislative session winds down, it’s remarkable how little has changed. The state of emergency is over. The pandemic is receding. But the state’s thick net of rigid regulations remains largely intact. 

Most changes were made on the margins. There was no comprehensive rewriting of occupational licensing laws or business regulations. Even after a wave of restaurant closures, lawmakers couldn’t bring themselves to allow cocktails to go. Massachusetts will legalize to-go restaurant cocktails before New Hampshire does. 

State laws and local ordinances remain run through with the presumption that people can’t figure out how to engage in economic activity safely unless they first obtain government permission and government-mandated training. 

A lot of good changes have been made. But we still can’t let go of the notion that 424 legislators should tell the pizza parlor how to make pizza. 

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The COVID-19 emergency is over in New Hampshire

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When Gov. Chris Sununu announced the end of the statewide mask mandate on April 15, the seven-day rolling average of positive COVID-19 cases was 411.6, the number of positive cases in the state was 3,763, and 130 people were hospitalized with COVID-19. 

By June 8, the number of known COVID-19 cases had declined by 91% from April 15, hospitalizations had declined by 78%, and the seven-day average of new cases had declined by 88%. 

Only 28 people were hospitalized on June 8, and only 322 known cases existed in the state.

Going back to the height of the pandemic in New Hampshire, the drop is even more dramatic. 

  • The number of new infections has dropped by 97.5% from its December 3 peak.
  • The seven-day rolling average of infections has dropped by 94% from its December 8 peak.
  • Hospitalizations have dropped by 92% from their January 1 peak. 
  • The seven-day rolling average of COVID-19 deaths has dropped by 88% from the peak, which was reached on both December 26 and January 7. 

Vaccinations have changed the state of the pandemic in New Hampshire, dramatically reducing the number of hosts for the virus to infect, and providing protection to the most vulnerable populations. 

Nearly 60% of the state’s population has received at least one vaccine dose and 50.7% have been fully vaccinated, according to the state’s COVID-19 dashboard.

By any measure, the COVID-19 public health emergency in New Hampshire is over. 

Gone with it are the justifications for a state of emergency.   

When Gov. Sununu declared a state of emergency on March 13, 2020, his executive order stipulated the following concern (among others), that “if COVID-19 spreads in New Hampshire at a rate comparable to the rate of spread in other countries, the number of persons requiring medical care may exceed locally available resources, and controlling outbreaks minimizes the risk to the public, maintains the health and safety of the people of New Hampshire, and limits the spread of infection in our communities and within the healthcare delivery system.”

The declaration stated that “under RSA 4:47, III, the Governor has ‘power to make, amend, suspend and rescind necessary orders, rules and regulations’ to carry out emergency management functions in the event of a disaster beyond local control.”

State law does give the governor those powers — when there is a state of emergency. 

RSA 21-P:35 VIII defines “state of emergency” as “that condition, situation, or set of circumstances deemed to be so extremely hazardous or dangerous to life or property that it is necessary and essential to invoke, require, or utilize extraordinary measures, actions, and procedures to lessen or mitigate possible harm.”

Though COVID-19 still exists in the state, its presence no longer presents a situation so extremely dangerous that “it is necessary and essential” to invoke “extraordinary measures” to mitigate the harm. 

Further vaccinations will continue to reduce infections, hospitalizations and deaths. 

When a state of emergency ends, all of the emergency orders end with it. Many of those orders nullified regulations that were never needed and that interfered with both medical and business innovations. Rules limiting pharmacists’ scope of practice, preventing hospitals from hiring unlicensed helpers, preventing telemedicine and the practice of medicine by retired physicians, and preventing businesses from adapting by offering sidewalk dining or alcoholic beverages to go are just a few of the regulations lifted by emergency orders.

Because these and other allowances would disappear as soon as the emergency ends, the governor might have an interest in keeping the state of emergency in place a little longer until pending legislation making such emergency orders permanent is adopted. For example, a bill is pending that would let restaurants continue outdoor dining in common areas such as public sidewalks. If the emergency is lifted before that passes, restaurants would have to close those popular outdoor seating areas immediately. 

But the threat that prompted the emergency declaration last year clearly is gone, and prolonged extensions of the state of emergency no longer can be justified.

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