This is the second part of a post that was originally published on Legal Planet. The first part ran on July 19. Reprinted with permission.
What Legal Authority Would an Emergency Climate Declaration Give the President?
What government powers would be unlocked by declaring a climate change emergency? One immediate possibility would be to use the same power that former President Trump used to divert military construction funds to other uses — in this case, perhaps building wind or solar farms or new transmission lines. But what else could President Biden do?
The Brennan Center has compiled a helpful list of almost 150 statutes giving the president special powers during emergencies. The list doesn’t map the outer perimeter of presidential powers — there are other laws that give presidents powers to take action on the basis of national security, and the president also has some ill-defined, though not unlimited, powers to take action without explicit congressional authorization. But the list provides a good start.
Here are some of the possibilities:
There may well be others on the Brennan Center list that I missed. Moreover, as I said above, the president has other powers relating to national security, statutory and otherwise, that aren’t keyed to a declaration of national emergency — for instance, the kinds of tariffs Trump imposed on foreign goods (say, those relating to oil and gas drilling, or to oil imports.)
It’s possible that the Court would apply the major questions doctrine to limit some of these statutory authorities in the context of climate change. Historically, however, the courts don’t seem to have questioned use of statutory authorities that are triggered by an emergency declaration.
What Would Be the Possible Benefits of an Emergency Declaration?
Declaring a climate emergency could have benefits even apart from any concrete follow-up. It would be a strong signal that the U.S. recognizes the urgent need to cut carbon emissions — a signal to the international community as well as courts and agencies in the United States. That would be a plus by itself.
Beyond that, I would favor tying emergency actions (at least at the start) to recognized issues that impact our society’s security. One is grid resilience. Renewables and storage would make a particular contribution to resilience in areas where they have the least penetration, meaning the Southeast, but also in many other states. Microgrids combined with distributed solar could also be useful in the wake of natural disasters like the hurricanes endemic to the Gulf Coast. We need to jump-start the carbon transition in those parts of the country to pave the way for more comprehensive measures. We also need to upgrade the grid elsewhere. Doing so would allow much bigger cuts in emissions from the electricity sector.
Another security-related issue involves military installations. The military has already taken steps to increase use of renewables and to harden sites against sea level rise. But a lot more could be done, particularly in the way of much greater electrical storage capacity (which might include use of electric vehicle batteries). Military funds could be redirected for these purposes, and the military could also be involved in increasing grid resilience in areas surrounding military bases and for critical infrastructure more generally. This could be especially helpful in starting the ball rolling in the Southeast, which remains the most backward area in terms of renewable energy.
A third option would be to take America out of the business of encouraging the use of coal and oil in other countries. Emergency and national security powers give the president considerable leverage over exports and financing of foreign projects. We should not be devoting our resources or production to encouraging countries like India to build more coal plants.
It would take a lot more work to turn these ideas into actionable proposals. We’d need to know the effect of these measures, the available resources, and just what statutory provisions would support them. Closer study could also turn up additional possibilities. It would probably take a sustained effort, maybe by a small team, to actually work through the issues in-depth.
My conclusion in 2019 was that Trump’s “border wall” emergency was an abuse of power and shouldn’t serve as precedent for a climate emergency. There was never a definitive ruling about Trump’s (probably illegal) diversion of other funds to pay for the wall, because of issues about legal standing to challenge the action. I do remain concerned about using an expansive view of emergency power to take major domestic actions. But Biden finds himself in a situation where other avenues seem less promising. Given the deadlock in Congress and the Court’s adverse ruling on EPA’s power to regulate emissions from power plants, the argument may be stronger for breaking the glass and pulling the red emergency lever.
UPDATE: You can read even more about this issue in Professor Farber's July 21 op-ed in The Conversation.
Showing 2,837 results
Daniel Farber | July 20, 2022
What government powers would be unlocked by declaring a climate change emergency? One immediate possibility would be to use the same power that former President Trump used to divert military construction funds to other uses -- in this case, perhaps building wind or solar farms or new transmission lines. But what else could President Biden do?
Grace DuBois | July 20, 2022
Corporations’ widespread use -- and abuse -- of forced arbitration in employment contracts allow them to steal billions of dollars from workers every year with impunity. Employers have unilaterally imposed mandatory arbitration agreements onto 60 million American workers, and the practice is only becoming more widespread. By 2024, 80 percent of nonunion workers will be subject to forced arbitration.
Grace DuBois | July 19, 2022
Wage theft is a massive crisis for workers, but federal, state, and local agencies have failed to address the problem. Wage theft occurs in many forms: Paying wages lower than the minimum wage, not paying overtime wages, coercing employees to work "off the clock" before or after shifts, prohibiting workers from taking legally mandated breaks, confiscating tips, and more.
Daniel Farber | July 19, 2022
Based on press reports, it now seems likely that President Joe Biden will soon declare climate change to be a national emergency. Would this be legal? Would it unlock important powers that could be used to fight climate change? My answers are: It would probably be legal, and it would unlock some significant powers. But an emergency declaration is not a magic wand that gives presidents a blank check. It would allow some constructive steps to be taken, but within limits.
Minor Sinclair | July 15, 2022
Nationally, nonprofit organizations employ about 10 percent of the entire private workforce. That’s 12 million paid workers -- nearly as many as the entire manufacturing field. Many of those employees, with the exception of higher-paid college and hospital workers, earn $4 to $5 per hour less in terms of total compensation than similar workers in private industry. Many factors contribute to the nonprofit wage gap. For some organizations, a reliance on donations or government contracts puts a ceiling on employee compensation. For others, mission-first means serving the cause even if it means sacrificing the financial well-being of the employees tasked with doing the actual work. This is unacceptable -- especially during a time when the nonprofit world is increasingly focused on the importance of aligning mission and human-resource policies. But figuring out how to make that alignment happen is the tricky part.
Alexandra Rogan | July 15, 2022
Without Senator Joe Manchin's (D-WV) support, a key energy bill will fail to move forward in the U.S. Senate. The bill's provisions would have taken needed steps toward limiting the global average temperature change to 1.5 degree Celcius, the goal of the Paris Climate Agreement, and transitioning our nation to a clean energy economy.
Hannah Klaus | July 13, 2022
Duke Energy, a major corporation with near-monopoly control over North Carolina’s electric grid, has outsized influence over the state’s decarbonization plan, which is now under review. The state legislature ordered the utility commission to make a 70 percent reduction in carbon emissions by 2030 and to reach carbon neutrality by 2050. Duke Energy has submitted a plan to the commission to meet those goals, but the plan fails to take affordability and equity into full account. What’s worse: Low-wealth people aren’t required -- or, in many cases, even able -- to participate in the planning process. They’re shut out.
Alice Kaswan | July 7, 2022
The Center for Progressive Reform has joined close to 1,000 organizations and individuals in providing comments on California's long-awaited plan for achieving carbon neutrality, the Draft 2022 Scoping Plan Update (Draft Plan). Gov. Gavin Newsom gave the California Air Resources Board (CARB), the state agency tasked with coordinating the plan, a daunting challenge: achieving carbon neutrality by 2045 at the latest. Our comments conclude that the state should (1) be more ambitious, (2) more explicitly achieve multiple objectives, including environmental justice, and (3) develop a supplemental plan that more specifically outlines the policy tools the state will employ to achieve its objectives.
Alexandra Rogan | July 7, 2022
An article co-written by Center for Progressive Reform Member Scholar David Adelman and Attorney Advisor at the U.S. Environmental Protection (EPA) Jori Reilly-Diakun was selected for inclusion in this year’s Environmental Law and Policy Annual Review (ELPAR). ELPAR is a student-edited volume published annually in the August issue of the Environmental Law Reporter. It features abridged versions of selected articles with commentary from environmental experts.