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.