Biden announces new climate change actions but holds emergency statement in reserve

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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 step that some Democratic officials and activists asked after Democratic Senator Joe Manchin apparently legislative action blocked and the Supreme Court limited the power of the Environmental Protection Agency to regulate greenhouse gas emissions.

According to White House officials, an emergency declaration remains an option. As a jurist who has analyzed the limits of presidential powerI believe declaring climate change a national emergency could have benefits, but also poses risks.

Taking this path sets an important precedent. If presidents increasingly use emergency powers freely 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 border security emergency February 15, 2019, after the Congress refused to fund most of its $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 opinion, declaring a climate emergency would probably be legal and would unlock provisions in many laws that allow the president or his subordinates to take specific action under a national emergency declaration.

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 used the Defense Production Act, a law dating back to the 1950s, to expand the 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 power generation. Oil and gas leases on federal lands and in federal waters contain clauses that allow the Department of the Interior to suspend them during national emergenciesalthough that seems unlikely in the immediate future given current gas prices.

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 Europe’s increased dependence on US 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.

Among recent precedents, President Barack Obama declared a cybersecurity emergencyand Trump said steel imports were an urgent threat to national security.

It is not hard to argue that climate change is an equally critical issue, especially since much of the world is 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 lack.

However, the recent Supreme Court decision in West Virginia vs. EPA adds a wildcard to the legal analysis. The court ruled that some actions are so important that they demand clear additional authority 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 the Second World War is a striking example.

“Iron-fisted Breach”, a cartoon by Jerry Costello reacting to President Harry Truman’s efforts to nationalize the American steel industry with an emergency declaration, published in the Knickerbocker News (Albany, NY), April 23, 1952. Library of Congress, CC BY-ND

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, say, a plague on cultures nationwide, the President can activate the law that allows the Secretary of Transportation to requisition any private vessel at sea“wrote Elizabeth Goiten, director of the Brennan Center’s Freedom 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 veto-proof margins for two resolutions canceling Trump’s border emergency, which the administration has used to divert billions of dollars to building walls.

As Judge 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 had no constitutional authority to nationalize the American steel industry during the Korean War – emergency powers “provide a pretext ready to usurpation” and the possibility of using these powers “may tend to create emergencies” 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 a article originally published on March 9, 2020.


Daniel Farberlaw professor, University of California, Berkeley

This article is republished from The conversation under Creative Commons license. Read it original article.

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