| Consilience

President Trump’s “National Emergency Concerning the Southern Border of the United States” has rekindled discussion surrounding the potential for a U.S. President to declare a national emergency over the issue of climate change. Soon after the president declared his emergency, Democratic Congresswoman Ilhan Omar and Senator/Democratic Presidential candidate Bernie Sanders both tweeted that climate change is the real national emergency, and Republican Senator Marco Rubio warned that a border emergency would set precedent for a climate emergency. This renewed interest in the subject obviously leads not only to the question of whether a climate change-based national emergency would be a legitimate exercise of executive power, but also whether such a policy move would be an effective strategy for combating climate change.

There are various pieces of legislation that have been enacted over the years relating to the President’s power to declare a national emergency. The National Emergencies Act, signed in 1976, is the primary law that outlines the procedure of “orderly implementation and termination” of national emergencies. Emergencies declared under this act have included trade sanctions on countries such as Iran and responses to health crises like the 2009 H1N1 flu outbreak. Another, older law that may be relevant to the debate is the 1944 Public Health Service Act. Under this law national emergencies can be declared in relation to public health emergencies, pending the approval of the Secretary of Health and Human Services. This act is typically used for public health emergencies resulting from diseases and natural disasters, so there is little precedent for the declaration of an emergency for preventative reasons. Regarding disaster relief, the Public Health Services Act also works in conjunction with the Disaster Relief and Emergency Assistance Act of 1988, under which state governors can request for federal assistance in emergencies that they are not equipped to handle. States at high risk of climate change-induced natural disasters such as California could use this act to help with the relief effort, but it would mostly be continuing with existing protocols rather than creating a new climate emergency. The most promising powers that are listed within all of these statutes deal with managing oil leases, industries, and transportation. However, the exercise of these powers would still require some legal wrangling to justify using them for a climate emergency.

The problem with attempting to use these acts to declare a climate emergency arise from the fact that climate change is an extremely broad issue with many far-reaching effects over space and time, making it difficult to assign the direct attribution needed by the President in their justification for emergency provisions. The justification would have to come not from climate change itself, but from the crises that it causes, such as the “unmanaged retreat” of coastal communities threatened by sea level rise, or increased frequency of natural disasters enhanced by climate change. This falls under the general category of climate change adaptation, or dealing with crises as they emerge. A national emergency would be a poor way to implement the mitigation strategy of climate change policy, which deals primarily in preventative measures to reduce or eliminate the severity of a crisis. Both mitigation and adaptation policies need to implemented, but there is a greater need to start mitigating now so that less adaptation will be needed.

Of course, the main sticking point is this: What a President is able to accomplish through a national emergency is subject to change drastically depending on how the U.S. court system views President Trump’s current border emergency. At the time of writing the National Emergency Concerning the Southern Border of the United States has survived a congressional rebuke via the President’s veto power but is still facing over half a dozen lawsuits which will likely work its way up to the Supreme Court. If the courts rule in favor of Trump and his reasoning, then the scope of emergency powers and the definition of what constitutes an emergency will become much broader. The outcome of border wall emergency lawsuits would in effect set the parameters for a future climate emergency.

There is also the chance for a precedent on climate emergencies to be set internationally. Increased pressure from youth climate activists is pushing some European politicians to declare national emergencies. In response to weeks of demonstrations and motions by several of its member cities and countries, the United Kingdom has become the first government to declare a climate emergency, with a goal of reducing carbon emissions by 80% of their 1990 levels by 2050. While this declaration is mostly symbolic and doesn’t require any further legal action on Parliament’s part, it helps to set an international precedent that national emergencies can be declared over climate change. The success of the British activist group Extinction Rebellion could help to galvanize their American counterparts (such as Sunrise Movement) to push for similar resolutions, adding further pressure to the issue.

In conclusion, while national policies to combat climate change are critically important, declaring a national emergency is one of the less effective means of doing it. There is little if any legal precedent for a climate emergency, and the effects of climate change are so broad that pinning in down enough for the requirements of emergency powers would be limited to actions such as disaster relief. The political capital could instead be spent on other policy solutions such as new legislation or amending existing environmental statutes to account for climate change, such as the Clean Air Act and Clean Water Act. Regardless of whether the policy is a national emergency or not, drastic policy action is needed in order to avoid the worst effects of climate change.

References:

Could a National Emergency be Declared Over Climate Change in the United States?