This is the first part of a post that was originally published on Legal Planet. Click to read Part II. Reprinted with permission.
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.
I wrote several blog posts about the idea of a climate emergency in 2019. Back then, interest in presidential emergency powers had been sparked by former President Trump’s use of emergency power to help build his border wall. I’ve adapted the final post in that series to take account of intervening developments.
In 2019, I was worried that using this precedent to fight climate change will require some real soul-searching. Trump had violated a long-standing norm of presidential restraint in using emergency powers to address domestic policy. Whether to disavow or exploit that change in norms is a hard question. And declaring a climate emergency might help mobilize public opinion in support of legislative action, or it might cause a backlash that would make new legislation harder.
Something of a compromise position might be to declare that the resilience of the electrical grid is a national emergency, not climate change itself. That would still allow some important actions that would help reduce carbon emissions. Basically, many of the steps that are needed to decarbonize the grid would also increase its ability to resist and bounce back from disruptions due to national disasters or cyberattacks on the energy system.
With all that in mind, here’s what you need to know about the issues.
Would Climate Change Qualify as a National Emergency?
There is a genuine legal basis for calling climate change a national emergency, as opposed to Trump’s ridiculous border security declaration.
The U.S. government has already classified climate change as a serious threat to national security, and it is a threat that is getting stronger daily. Recent science indicates that climate action is even more urgent than we thought.
Trump’s stated justification in his border security proclamation was that “the problem of large-scale unlawful migration through the southern border is long-standing, and despite the executive branch’s exercise of existing statutory authorities, the situation has worsened in certain respects in recent years.” Trump’s stated justification in his proclamation was that “the problem of large-scale unlawful migration through the southern border is long-standing, and despite the executive branch’s exercise of existing statutory authorities, the situation has worsened in certain respects in recent years.” Climate change, too, is a “longstanding problem,” and it certainly has gotten worse despite the effort of the executive branch (Obama) to address the problem. Federal agencies, as well as Congress, have made it clear that climate is a serious threat to our nation.
The U.S. Environmental Protection Agency. EPA has made a formal finding, based on an exhaustive review of the scientific evidence, that greenhouse gases endanger human life and welfare both within the United States and globally. That finding was upheld by the D.C. Circuit. The U.S. Supreme Court reviewed other aspects of the D.C. Circuit’s decision but pointedly turned down requests that it review this EPA finding. The scientific evidence is ironclad. If a foreign power had somehow invented a weather-control technique to impose these harms on the United States, no one would doubt that this was a very serious national security problem.
Intelligence agencies. National security agencies have consistently viewed climate change as a serious threat. In written testimony to Congress about threats to national security, the Trump administration’s own Director of National Intelligence (DNI) discussed climate change. His discussion didn’t equivocate about the reality or dangers of climate change. Rather, he took the science, and the threat, seriously: “The past 115 years have been the warmest period in the history of modern civilization, and the past few years have been the warmest years on record. Extreme weather events in a warmer world have the potential for greater impacts and can compound with other drivers to raise the risk of humanitarian disasters, conflict, water and food shortages, population migration, labor shortfalls, price shocks, and power outages. Research has not identified indicators of tipping points in climate-linked earth systems, suggesting a possibility of abrupt climate change.”
The Pentagon. The military has also taken a proactive stance on climate change. Former Defense Secretary James Mattis was clear about the impact of climate change on national security: “Climate change is impacting stability in areas of the world where our troops are operating today. . . It is appropriate for the Combatant Commands to incorporate drivers of instability that impact the security environment in their areas into their planning.”
Congress. Congress has also recognized climate change as a threat to national security and more specifically to military infrastructure and activities. The most significant action was the passage of the Defense Authorization Act of 2017, H.R. 1810. The act was a funding statute for the Pentagon. Section 335 of the act states that “climate change is a direct threat to the national security of the United States and is impacting stability in areas of the world both where the United States Armed Forces are operating today, and where strategic implications for future conflict exist.” In a crucial House vote, 46 Republicans crossed the aisle to vote against an effort to take out the climate provision. Former President Trump signed the bill.
The courts have never overturned a presidential emergency declaration. I do worry a bit, however, that the current Supreme Court could be more interventionist. It seemed to have little compunction about overturning state emergency COVID restrictions on churches. It also knocked out the OSHA vaccine mandate and the CDC’s eviction moratorium, basically using the same “major questions doctrine” it applied more recently to axe Obama’s Clean Power Plan. I still think that the Court is unlikely to overturn a presidential emergency declaration, but I’m not as confident of that as I might have been a few years ago.