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President Biden Shouldn’t Declare Climate Change a National Emergency

The National Emergencies Act is not the right tool to save the planet.

January 29, 2021

This originally appeared in the Washington Post.

President Biden has unveiled a plan to address climate change that includes aggressive executive actions: rejoining the Paris climate accords, stopping the Keystone XL pipeline, forming a Justice Department environmental justice office and imposing a federal moratorium on new oil and gas leases. Absent from Biden’s plan, however, is the national emergency declaration that Senate Majority Leader Charles E. Schumer (D-N.Y.) has advocated to give the president more power to act.

The omission might seem puzzling, but it’s the right call.

The idea of an emergency declaration has intuitive appeal: Some climate observers say that global warming is reaching a point of no return, and Congress is missing in action. But even though it may be the planet’s greatest crisis, as a long-standing problem requiring long-term solutions, climate change isn’t an “emergency.” Using emergency powers to address it would be a misuse of those powers — one that carries significant risks for our democracy without providing the tools we need to confront the challenge.

Under the National Emergencies Act (NEA), a declaration of national emergency unlocks enhanced authorities contained in dozens of provisions of law. These authorities span areas of government as varied as land management and military deployment. Among them are sweeping powers that allow presidents to shut down or take over radio stations, ban agricultural exports and freeze assets if the president deems such action necessary to address a foreign threat. In general, there is no requirement that the power invoked relate to the nature of the emergency; the president is on the honor system.

The NEA doesn’t define a “national emergency” or list criteria for such an emergency. Nonetheless, when President Donald Trump declared one to secure funding for a border wall, his critics, including me, pointed out that the word “emergency” has an established definition. Part of that definition is the element of surprise: Emergencies are, among their features, sudden or unforeseen.

This is no mere question of semantics; it is central to the purpose of emergency powers in our constitutional system. Emergency authorities represent extraordinary delegations of power by Congress. What justifies such delegations is the very fact that emergencies happen without warning and unfold quickly. In those circumstances, the president needs greater flexibility, as Congress could not have legislated a tailored solution in advance and cannot move with sufficient speed once the emergency occurs.

Emergency powers are designed for events such as terrorist attacks, epidemics and natural disasters — earthquakes, tornados and the like. They aren’t intended to address persistent problems, no matter how dire. And they aren’t meant to be an end-run around Congress. If lawmakers have had ample time to consider a problem and have chosen not to authorize certain solutions, declaring a national emergency to bypass Congress is a misuse of power. This principle applies whether the issue is unlawful border crossings or the warming of the planet.

We ignore this principle at our peril. These powers carry significant potential for abuse, given how easily they can be invoked and the vast authorities that some of them provide. If we concede that they are available as a congressional workaround, policy disputes could become an excuse for presidential power grabs.

Moreover, substituting presidential emergency powers for normal legislating lets Congress off the hook. If current laws are insufficient to tackle a serious ongoing problem, it is Congress’s job to pass new ones. Leaving the president to hunt for useful legislative nuggets within the framework of emergency powers will almost always be a poor substitute.

Climate change is a case in point. If emergency powers could save the planet, there might be a powerful moral argument for taking advantage of them, despite the risks to democracy. But the statutory provisions available during a national emergency weren’t written with climate change in mind. Although researchers have identified a small number of emergency powers that might be repurposed to address climate change, none would be a particularly good fit.

Some would be vulnerable to legal challenge. For instance, advocates have suggested that the power to reprogram military construction funds, which Trump invoked to secure funding for the border wall, could be used to fund green energy construction projects. In reviewing Trump’s border wall antics, however, courts have recognized that this power is available only when the emergency requires the deployment of armed forces.

Other authorities come with conditions that make them impracticable. The government may suspend offshore oil and natural gas leases during a declared national emergency, for example, but it must compensate the leaseholders — an expensive proposition over time. And using emergency economic sanctions to penalize nations with poor environmental practices, as some have proposed, could draw an international backlash — particularly given the United States’ own record over the past four years: abandoning the Paris climate agreement and rolling back environmental standards. The United States is second only to China in carbon emissions.

Even if these and other authorities could be shoehorned into service, they would not be enough. Effectively combating climate change will require permanent systemic changes to the way we produce and consume energy, along with a significant investment of resources. The handful of potentially relevant provisions triggered by a national emergency declaration wouldn’t suffice. Biden’s executive order recognizes that some of the most important steps to be taken — including moving to a carbon pollution-free electricity sector no later than 2035 — probably will require new legislation. Congressional action will certainly be necessary to curb carbon emissions more broadly and to allocate sufficient funding for the further development and wider proliferation of renewable-energy sources and technologies.

Many climate activists acknowledge that emergency powers are not a solution in themselves. Nonetheless, some reason that an emergency declaration would create momentum for reform by underscoring the urgency of the situation. But that’s far from clear. Some research indicates that “fear appeals” can be successful when coupled with a clear action plan that yields visible results. If, on the other hand, there is no simple solution, fear appeals can trigger defensive responses. And if the goal is to prompt congressional action, leading off with an emergency declaration could backfire, as many of the members who require convincing could interpret it as an effort to bypass them — or an invitation for Congress to stand down and rely on executive action.

There’s no quick fix for climate change. What the country (and the world) needs is a bold and sustainable new vision for how human beings can survive and thrive without sacrificing the planet. Biden has a key role to play in articulating that vision, developing policies to advance it, recruiting governmental and private partners, strategically deploying available authorities (those that do not require declaring an emergency), and proposing legislation to provide the necessary additional authorities and resources.

That work is already underway. But it cannot be short-circuited with a national emergency declaration. Such a declaration risks compromising the health of our democracy without producing the resources and authorities needed to ensure the health of our planet.