On July 20, 2022, President Joe Biden traveled to a former coal-fired power plant in Massachusetts that is being converted into an offshore wind turbine manufacturing facility. Biden announced millions of dollars to fund climate action, including upgrading infrastructure, weathering buildings and installing cooling systems in homes. He also touted job growth through clean energy generation and pledged to use all his executive power to reduce US greenhouse gas emissions.
But Biden has not declared a national climate emergency – a move some are taking Democratic officials and activists appear to have been pushing for Democratic Senator Joe Manchin blocked legislative action and the Supreme Court limited the powers of the Environmental Protection Agency regulate greenhouse gas emissions.
An emergency declaration, according to White House officials remains an option. As a legal scholar who analyzed the limits of the President’s powerI believe that declaring climate change a national emergency could have benefits, but it also poses risks.
Going this route sets an important precedent. As presidents increasingly freely use emergency powers to achieve political ends, this approach could become the new normal — with serious potential for abuse of power and ill-considered decisions.
Yesterday the limit; the climate today
President Donald Trump declared a national emergency for border security on February 15, 2019, after the convention refused to finance most of its $5.7 billion request to build the border wall. As Trump’s intent became clear, Republican Senator Marco Rubio became warned that “tomorrow’s national security emergency could be climate change.”
Rubio was right to take this possibility seriously. In my view, declaring a climate emergency would likely be legal and would unleash provisions in many laws empowering the President or his subordinates to do so take certain actions under a national declaration of emergency.
Like Trump, Biden could use power to divert military construction funds to other projects, such as renewable energy projects for military bases. Biden could also use trade measures — for example, restricting imports from high-carbon countries, or perhaps imposing a carbon fee on goods from those countries to create a level playing field.
Another possible measure would be to order companies to produce certain goods. The Trump administration used the Defense Production Act, a law dating back to the 1950s, to do this Expansion of production of medical material to treat coronavirus patients. Biden has already used the law to speed up domestic production Solar panel parts, insulation and other clean energy technologies.
After the state of emergency is declared, Biden could provide loan guarantees to critical industries to fund goals like expanding renewable energy production. Oil and gas leases on federal land and in federal waters contain clauses that allow the Department of the Interior to do so to suspend them during national emergenciesalthough given current gas prices this seems unlikely in the immediate future.
Declaring a national emergency would also allow the president to limit oil exports to other countries – which also seems unlikely given the war in Ukraine increased European dependence on US oil. Biden could also limit U.S. funding for foreign coal projects.
Would it be legal?
Emergency powers are only available when climate change is deemed an emergency. The law authorizing presidents to declare national emergencies does not define the term.
It’s not hard to argue that climate change is an equally critical issue, especially when much of the world suffers from it record-breaking heat waves and wildfires. There is also clear support for the idea that climate change is a major national security threat.
To date, courts have never overturned a presidential emergency declaration, and a climate emergency would likely be no exception. Legal Challenges to Trump’s Border Security Statement failed.
However, the recent Supreme Court decision in West Virginia vs. EPA adds a placeholder to the legal analysis. The court ruled that certain acts are so important that they require additional clear authority from Congress. How the court would apply this doctrine in the context of the National Emergencies Act remains unclear.
frustration with stagnation
Contingency measures can sometimes shorten bureaucratic procedures and reduce the potential for litigation compared to the normal cumbersome regulatory process. This makes them faster and more determined. They also delegate responsibility directly to the President, increasing political accountability. There’s no question who’s to blame if you don’t like the border wall – or emergency climate action.
Unlike legislation, an emergency action does not have to pass through Congress. And compared to most federal regulations, there is less need for transparency or public comment and less room for judicial scrutiny.
This can speed things up, but it also makes bigger mistakes more likely. That Internment of Japanese Americans during World War II is a vivid example.
Additionally, once a state of emergency is declared, civil rights fear that a president could use emergency powers in legislation that doesn’t even relate to that state of emergency. “Even if the crisis at hand is a nationwide crop disease, for example, the President can activate legislation that allows the Secretary of Transportation to do so confiscate every privately owned ship at sea‘ wrote Elizabeth Goiten, director of the Brennan Center Freedom and National Security Program.
Legislation is difficult and time-consuming. It will require approval from both houses of an increasingly polarized Congress. The filibuster rule requires 60 votes in the Senate for most legislation, and right now Democrats don’t seem to be able to muster even the 50 votes they would need to take advantage of the “reconciliation” exception to that requirement.
But there are also real dangers to invoking emergency powers. Normalizing their use could make these expanded presidential powers difficult to curb.
Congress can nullify declarations of emergency through an act of disapproval, but in practice this has proved ineffective. For example, despite bipartisan support, Congress failed to raise veto-safe margins for two resolutions lifting Trump’s border emergency, with which the government diverted billions of dollars to build the wall.
As Judge Robert Jackson wrote Youngstown Sheet & Tube Company v Sawyer – a famous 1952 Supreme Court decision in which the court found that President Harry Truman did not have the constitutional authority to nationalize the US steel industry during the Korean War – emergency powers “provide an easy pretext for usurpation” and the potential using these powers “may tend to spark emergencies” to justify their use.
Contrary to some observers, I still see room for real progress through the normal regulatory process. In my view, it’s not yet time for Biden to break the glass and pull the red emergency lever.
This is an updated version of a article originally published on March 9, 2020.