How the Next President Could Declare a National Emergency Over Climate Change – By Brian Kahn (Earther) / Feb 19 2019
On Friday, President Trump tossed precedent out the window and declared a national emergency to pay for an unneeded border wall he previously promised Mexico would pay for.
His declaration isn’t just setting up a massive court battle. It also opens the door to imagining how a Democratic president could wield emergency powers to tackle climate change, something Republicans are already worrying about and Democrats are already embracing as a path forward given the years of Republican filibustering, inaction, and denial.
As it turns out, the president has a few potential avenues to quickly address both fossil fuel production and renewable energy, but the powers aren’t nearly as sweeping as Republicans fear and advocates hope. A climate crisis national emergency declaration isn’t going to lead to the complete decarbonization of the U.S., but it could start to unwind a system that keeps churning carbon dioxide into the atmosphere at a dangerous rate.
Imagine that around 11 p.m. on November 3, 2020, CNN calls Florida for Kamala Harris, making it clear Trump will be a one-term president. Democrats also hold the House, but the battle for the Senate comes down to Texas. Beto O’Rourke’s run at John Cornyn’s seat ends like his race against Ted Cruz, with the hope of turning Texas purple dying out in the state’s deep red rural counties. As a result, Republicans hang onto the Senate and with that, any hope of meaningful climate action making it through the legislative branch goes out the window for at least two more years.
Harris said opioids and gun violence are both national emergencies early in the campaign, leaving the door open to her issuing a declaration. But recognizing the urgent message in the UN’s special 2018 report on climate change, imagine President-elect Harris instead announces on her first day in office that she’ll sign a declaration for a national emergency to address the climate crisis.
In declaring an emergency, Harris will have to outline what emergency powers she’d use. The Brennan Center for Justice has identified nearly 140 statutes that any president can draw on when declaring a national emergency that give them power to regulate, move money around, and even use industry to do the government’s bidding.
All these powers are tied to the idea of a national security emergency, with recent declarations springing up in wake of the September 11 terrorist attacks and Russia’s invasion of the Ukraine. But as we’ve seen with the Trump wall declaration, presidents have a pretty wide latitude for interpreting what constitutes a threat to national security. A future president may argue there’s ample reason to declare a climate change national emergency, given the myriad ways in which it undermines U.S. security at home and abroad.
“There are very few restrictions on president’s ability to declare a national emergency,” Andrew Boyle, a counsel at the Brennan Center’s Liberty and National Security Program, told Earther. “Certainly around climate change and all the possible ramifications, billions of dollars in devastation climate change can cause, migration issues, food scarcity, all these are things that come with climate change that could inform the basis for president declaring of national emergency.”
Once Harris declares a national emergency over climate change, what can she do? Boyle suggested there’s not a lot in the aforementioned 140 statutes that could reduce carbon pollution in ways like, say, tightening fuel economy standards. But the broad powers do present some other disruptive ways of addressing climate change.
An analysis by Dan Farber, a University of California, Berkeley law professor at Legal Planet, found a few statutes President Harris could draw on to address the climate crisis via presidential fiat in what, as a reminder, is a completely hypothetical scenario.
“Some of the powers are broader than others,” he told Earther. “They don’t add up to complete leeway in using federal funds or imposing special regulations, but they do provide significant authority.”
That leeway could allow future President Harris to both address the cause of climate change (fossil fuel extraction) and ramp up the solutions. On the cause side, among the national emergency statutes available are a suite tied to fossil fuel extraction and public lands. Under 43 U.S. Code § 1341, the president can declare that certain areas of the outer Continental Shelf are “restricted from exploration and operation” if those regions are needed for national defense. That means offshore oil and gas leasing—something Trump has tried to ramp up with limited results—could instead be wound down. Under 43 U.S. Code § 155, the president can also restrict access to and utilization of public lands. This, again, could be used to shut down fossil fuel exploration and production on the roughly 640 million acres of public land the U.S. operates, including drilling in places like the Arctic National Wildlife Refuge.
Transportation is the largest source of U.S. greenhouse gas emissions, and while an emergency declaration wouldn’t include more stringent fuel economy standards, it could include other measures to limit transportation emissions. 49 U.S. Code § 114 gives the executive branch the ability to “coordinate domestic transportation, including aviation, rail, and other surface transportation, and maritime transportation.” That could give the president the ability to curtail commercial flights or in Farber’s read, “allow various restrictions on automobile and truck use” all with the intent of reducing carbon emissions. Meanwhile, 46 U.S. Code § 56301 would allow the secretary of transportation to “requisition or purchase” any marine vessel, effectively allowing the government to limit shipping emissions.
Of course, a U.S. with limited mobility and access to energy is hardly a place anyone wants to live, and President Harris could face immediate revolt and calls for impeachment in our hypothetical scenario. But she’d also be able to draw on other powers at her disposal to hopefully ease the transition, ramping up renewable energy and maybe even zero-pollution forms of transit.
50 U.S. Code § 4533 allows the president to “create, maintain, protect, expand, or restore domestic industrial base capabilities essential for the national defense.” Translated to climate change, the statute could be used by the government to expand the purchase of and investment in renewable energy technology, zero emissions vehicles, or mass transit, or ramp up mining of rare Earth metals crucial to batteries and solar panels, all while bypassing Congress. 50 U.S. Code § 4531 could further reinforce the goals outlined above by providing “guarantees of loans” to any company or person deemed “necessary to create, maintain, expedite, expand, protect, or restore production and deliveries or services essential to the national defense.”
If some of this sounds dramatic and a bit totalitarian, well, it is. It also won’t address all sources of U.S. carbon emissions or do anything about the rest of the world, though a signal that the U.S. is ready to take dramatic action could have ripple effects. Using these powers is an ill fit to truly addressing climate change, though it’s entirely possible this will be part of the national discourse in 2020 if Democrats win the presidency but not the entire legislative branch.
“In a hyper partisan atmosphere, there is pressure to seize other tools but that may undermine other aspects of our democratic system,” Alice Hill, a research fellow at Stanford’s Hoover Institution and former senior director on Obama’s National Security Council, told Earther while noting she wasn’t advocating a national climate emergency as the right path forward.
If a president does go this route, it will almost certainly be challenged in court, much like the Trump administration’s declaration to fund a border wall. Both Hill and Boyle noted that the courts have tended to be deferential to the executive branch on areas of national security, and the border wall challenges will set precedent for any cases around a climate crisis declaration.
“Whatever deference they end up giving to Trump, that deference should apply to someone else who is trying to declare a climate change emergency,” Boyle said.
Beyond legal challenges, there’s also the teeny, tiny issue that declaring a national emergency subverts the will of the American people by bypassing Congress. Of course, Congress—and largely Congressional Republicans—has abdicated its responsibility to address climate change even as more Americans are increasingly concerned about it. You could argue that there’s a need for structural reform like eliminating the filibuster to try and move climate legislation forward, but that hinges on winning the Senate.
All of which is what makes the 2020 election so important beyond the White House, and why climate change could be one of the defining issues.
“We have a very urgent irreversible challenge currently already impacting the United States,” Hill said. “So there is a need to act on this.”
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