Biden announces new climate change actions but holds emergency statement in reserve
President Joe Biden gestures as he boards Air Force One for a trip to Somerset, MA, to talk about the climate, Wednesday, July 20, 2022, at Andrews Air Force Base, MD. Photo: Gemunu Amarasinghe/AP
On July 20, 2022, President Joe Biden visited a former coal-fired power plant in Massachusetts being converted into an offshore wind equipment manufacturing site. Biden announced millions of dollars in funding for climate change measures, including upgrading infrastructure, weatherizing buildings and installing cooling systems in homes. He also touted job growth through clean energy production and pledged to use all of his executive power to reduce greenhouse gas emissions in the United States.
But Biden has not declared a national climate emergency — a move some Democratic officials and activists urged after Democratic Sen. Joe Manchin apparently blocked legislative action and the Supreme Court limited the agency’s power. environmental protection to regulate greenhouse gas emissions.
According to White House officials, an emergency declaration remains an option. As a legal scholar who has analyzed the limits of presidential power, I believe declaring climate change a national emergency could have benefits, but also presents risks.
Taking this path sets an important precedent. If presidents increasingly freely use emergency powers to achieve their policy goals, this approach could become the new norm – with serious potential for abuse of power and rash decisions.
President Joe Biden has proposed sweeping action to slow climate change, but failed to muster majority support in the tightly divided Senate.
Yesterday, the border; today the weather
President Donald Trump declared a national emergency over border security on February 15, 2019, after Congress refused to fund most of his $5.7 billion request for the construction of a border wall. As Trump’s intent became clear, Republican Senator Marco Rubio warned that “tomorrow’s national security emergency could be, you know, climate change.”
Rubio was right to take this possibility seriously. In my view, declaring a climate emergency would likely be legal and would unlock provisions in many laws that authorize the President or his subordinates to take specific actions under a declaration of a national emergency.
Like Trump, Biden could use power to divert military construction funds to other projects, such as renewable energy projects for military bases. Biden could also use trade measures — for example, restricting imports from countries with high carbon emissions, or perhaps imposing a carbon tax on goods from those countries to level the playing field.
Another potential action would be to order companies to produce certain goods. The Trump administration has used the Defense Production Act, a law dating back to the 1950s, to expand production of medical supplies for the treatment of coronavirus patients. Biden has previously used the law to accelerate domestic production of solar panel parts, insulation and other clean energy technologies.
After declaring an emergency, Biden could provide loan guarantees to critical industries to help fund goals like expanding renewable energy generation. Oil and gas leases on federal lands and in federal waters contain clauses that allow the Department of the Interior to suspend them in the event of a national emergency, although this seems unlikely in the immediate future given current prices. some gas.
Declaring a national emergency would also allow the president to limit oil exports to other countries – although that also seems unlikely given the war in Ukraine, which has increased Europe’s dependence on American oil. Biden could also limit US funding for foreign coal projects.
Would it be legal?
Emergency powers are only available if climate change is deemed an emergency. The law authorizing presidents to declare national emergencies does not define the term.
Recent precedents include President Barack Obama declaring a cybersecurity emergency and Trump declaring steel imports an urgent national security threat.
It’s not hard to argue that climate change is an equally critical issue, especially with much of the world suffering from record heat waves and wildfires. There is also clear support for the idea that climate change is a major threat to national security.
To date, the courts have never struck down a presidential emergency declaration, and a climate emergency would likely be no exception. Legal challenges to Trump’s statement on border security have failed.
However, the recent Supreme Court decision in West Virginia v. EPA adds a wildcard to the legal analysis. The court ruled that some actions were so large that they required clearer authorization from Congress. How the Court would apply this doctrine in the context of the National Emergencies Act remains unclear.
Frustration with traffic jam
Emergency actions can sometimes shorten bureaucratic procedures and reduce the risk of litigation, compared to the normal cumbersome regulatory process. This makes them faster and more decisive. They also place responsibility on the president, which increases political accountability. There’s no question of who to blame if you don’t like the border wall – or emergency climate action.
Unlike legislation, emergency action does not have to go through Congress. And compared to most federal regulations, there are fewer requirements for transparency or public comment, and less room for judicial review.
This can speed things up, but it also makes major errors more likely. The internment of Japanese Americans during World War II is a striking example.
Moreover, once an emergency is declared, civil liberties advocates fear that a president could use emergency powers in laws not even related to that emergency. “Even if the current crisis is, for example, a scourge on crops nationwide, the president can activate the law that allows the secretary of transport to commandeer any private vessel at sea,” wrote Elizabeth Goiten, director of the Brennan Center’s Liberty and National. Security program.
Legislating is difficult and takes time. It requires the agreement of both houses of an increasingly polarized Congress. The filibuster rule requires 60 votes in the Senate for most legislation, and at the moment Democrats can’t seem to muster even the 50 votes they would need to take advantage of the “reconciliation” exception. to this requirement.
But there are also real dangers in invoking emergency powers. Normalizing their use could make these expanded presidential powers difficult to limit.
Congress can override declarations of emergency by passing a resolution of disapproval, but this has proven ineffective in practice. For example, despite bipartisan support, Congress failed to muster anti-veto margins for two resolutions canceling Trump’s border emergency, which the administration used to divert billions of dollars to building walls. .
As Justice Robert Jackson wrote in Youngstown Sheet & Tube Company v. Sawyer – a famous 1952 Supreme Court decision in which the court ruled that President Harry Truman did not have the constitutional power to nationalize the American steel industry during the Korean War – emergency powers “provide a pretext usurpation-ready,” and the ability to use these powers “may tend to trigger urges” to justify their use.
Unlike some observers, I still see room for real progress through the normal regulatory process. In my opinion, it is not yet time for Biden to break the glass and pull the red emergency lever.
This is an updated version of an article originally published on March 9, 2020.
Daniel Farber is a law professor at the University of California at Berkeley.