Is Climate Change a National Emergency?

Members of Congress recently introduced legislation mandating the declaration of a national climate emergency, while Senator Chuck Schumer (D-NY) invited President Joe Biden to declare climate change a national emergency. Reaction to these calls for a climate emergency has been mixed. Some environmentalists cheered. Others argued that using emergency powers to address climate change won’t help Biden fight it and would pose an unacceptable risk to democratic governance. These criticisms are not unfair, and they deserve careful consideration. But in light of the current, sobering state of climate science as well as the scientists’ call to take transformational action this decade, a climate national emergency should not be dismissed out of hand.

To be sure, declaring a climate emergency will not “solve” the climate crisis, and it shouldn’t be a substitute for legislative efforts and the work of the international Paris Climate Agreement (which the United States recently re-joined). It would, however, send a powerful signal from the White House about the urgency of the climate crisis—while also activating several legal authorities that could be put to work immediately. It would also reflect reality. A legal climate emergency acknowledges what climate scientists and experts already know: We are in a state of planetary emergency.

Climate Change: The One-Shot Problem

Climate change is unlike any problem facing the nation and the world: It has been aptly described as the “mother of all collective action” problems and a “super-wicked” problem.

Climate change is complicated by a unique temporal characteristic that penalizes inaction. Because greenhouse gas (GHG) emissions stay in the atmosphere for decades, dithering on climate action imposes escalating costs that rise over time. Unlike other thorny problems (e.g. health care, immigration), we may lack the luxury of ever coming back to the political system for a climate retry in the future—this is the so-called “one shot” problem. At some point, the effects of climate change will be too acute, have had too much impact, or be too late to stop or reverse. Climate scientists exclaim that now is the time for political leaders to take our “climate shot” or risk irreversible, catastrophic harm, not just to Americans, but to humans as a species.

About those impacts. Despite a COVID-19 economic slowdown—which temporarily slowed fossil fuel emissions—the world remains well off track to meet the emissions goals established by the Paris Climate Accord, a prerequisite to avoid climate change’s irreversible and catastrophic impacts. Climate science makes increasingly clear that this rise in GHG emissions increases the risk of climate tipping points and their cascading effects. Evidence is mounting that events such as the complete loss of the West Antarctic ice sheet or large swaths of the Amazon rainforest are more likely than initially thought. Ninety-nine percent of tropical coral reefs are projected to be lost forever if global temperatures rise above 2° degrees Celsius—one of the goals established by the Paris Agreement.

Climate Emergency: A Signaling Function

 For years, scientists have been exclaiming that we are already in a state of planetary emergency–a point recently echoed by the United Nations secretary general. Simply acknowledging that a situation is a national emergency can elevate an issue in the international and national consciousness, sparking follow-on action.

Central to this climate emergency discussion is the National Emergencies Act (NEA), a statute that delegates broad authorities to the president to declare a national emergency. Right now, the United States has 38 active emergencies. It is a remarkably diverse set of emergencies that address everything from terrorism to COVID, to the security situation in places such as Burundi, the Western Balkans, and Sudan. Five emergencies were declared in just the last year.  One month into office, President Biden just declared a new national emergency addressing the security situation in Burma.

The debate over using the NEA to address non-traditional threats is not new. Emergency powers were even used to address the horrific apartheid policies and actions of the government of South Africa. Critics lambasted this decision as merely “perceiving a sudden danger” that pre-empted legislative action and that it was a dangerous misuse of the word “emergency” While the United States was slow-footed in dealing with apartheid, the use of national emergency powers signaled a fundamental shift in U.S. policy toward South Africa. It also did not foreclose legislative action: Congress passed the Comprehensive Anti-Apartheid Act the following year and, thankfully, apartheid began to crumble.

A Climate Emergency Offers Supplemental, Substantive Authorities

Beyond the signaling function, a climate emergency adds supplemental authorities that are activated under the National Emergencies Act. Such authorities are already delegated by Congress and can be put to use immediately. If a climate emergency is declared, there are at least three relevant statutes that could be put to work immediately.

1. Prohibit Imports from Illegally Forested Products: Under the International Economic Emergency Protection Act (IEEPA), the president may use emergency economic powers for “extraordinary and unusual threats to the foreign policy and economy of the United States.” Climate change, a transnational issue that respects no political borders and is poised to destabilize U.S. coastlines and impact national security, surely meets this definition.

Consider how the IEEPA could be used to address what is happening in the Amazon rainforest, the “lungs of the planet” that serves as a global carbon sink. Brazilian President Jair Bolsonaro is not protecting enormous swaths of the Amazon from deforestation. Illegal foresting is running amok. Many products from illegally deforested lands in the Amazon can still be imported to the United States without fear of sanction. The IEEPA could prohibit the import of products from illegally deforested lands in the Amazon. Right now, U.S. trade policy is not synchronized with climate policy (a point made by senior diplomats)—but it could be upon a climate emergency declaration.

Outside the Amazon, the IEEPA could be used to prohibit or curtail international trade of particularly pernicious climate products such as nitrous oxide, particularly when it is used for non-essential purposes. Nitrous oxide, a chemical  compound used in food products, rocket fuels, and medical purposes has an outsized impact on GHG emissions. One ton of nitrous oxide is equivalent to nearly 300 tons of carbon dioxide, and it stays in the atmosphere for over 100 years.

2. Supercharge the Defense Production Act (DPA): The DPA has proven to be a critical tool to streamline the supply chain throughout the COVID-19 crisis, although it hasn’t always been utilized. The DPA can be used in both emergency and nonemergency conditions. In a climate emergency, the DPA’s authorities can be supercharged to expedite the production of critical technology items through federal loan guarantees. This could potentially foster the development of renewable energy technologies and help underwrite high-risk/high-reward technologies like carbon capture and sequestration, a nascent but promising technology.

3. Tap into emergency transportation authorities: During a national emergency the Transportation Security Administrator has supplemental authorities to “coordinate domestic transportation, including aviation, rail, and other surface transportation, and maritime transportation (including port security)” and “carry[ing] out such other duties, and exercise such other powers, relating to transportation during a national emergency.” This emergency authority received increased attention just last month when Biden’s Acting Secretary of Homeland Security activated to protect the safety and security of the transportation system during COVID-19.

This authority is both broadly written and its outer scope untested. But consider this authority’s potential appeal in a climate emergency. The U.S. transportation sector is the leading contributor of U.S. GHG emissions. Airports are already suffering from climate change and extreme heat events (which makes it dangerous to take off). U.S. transportation infrastructure is increasingly vulnerable to climate change–a point recently made by new Transportation Administrator Pete Buttigieg. Could this authority be used to coordinate and incentivize more climate friendly transportation policies? Or mandate that states report on their transportation sector’s GHG emissions and work aggressively to reduce them? One idea could be to ask the seven members of the Transportation Security Oversight Board to include climate change within their work on transportation security.

Are these emergency authorities a cure-all for climate change and a substitute for legislative action? Of course not. But given the mounting costs of climate inaction and the difficulty of enacting transformational climate legislation in a 50-50 Senate, the authorities that an NEA declaration would activate should be considered as part of the legal toolbox.

We Must be Honest About the Mounting Costs for Climate Inaction

Congress chose not to define “emergency” within the NEA. Absent a statutory definition, critics of a climate emergency declaration argue that the term “emergency” already has an established definition that can be found in the dictionary—it must be sudden, unforeseen.

A word about this unforeseeability requirement. Yes, the climate science makes clear that human activity is clearly causing global warming. The rise in GHG emissions due to human activity is leading to an increase in global temperatures. This increase, and the Earth’s warming, in the aggregate, is entirely foreseeable. But traditional notions of what is foreseeable and what is unforeseeable are difficult to apply to climate impacts, tipping points, and extreme weather. Extreme weather and other climate impacts strike with increased intensity and frequency, but we cannot pinpoint when and where climate impacts will occur with any great precision. This places us in a reactive stance. And the potential for tipping points rises with each day of climate inaction but we also do not know when and where they might occur. Some models suggest that the Greenland ice sheet could be doomed at 1.5.° degrees Celsius.  This could happen as early as 2030. Is the wholesale disintegration of Greenland’s ice sheet by 2030 foreseeable, foreclosing action? Impossible to say, but in light of the sheer gravity of the threat, shouldn’t we at least consider taking proactive steps to address this?

In contrast, climate experts point to an entirely different definition of emergency, which is defined as risk multiplied by urgency. Urgency is a function of reaction time divided by time left to avoid a bad outcome.  Using this definition, climate experts estimate that these factors—risk and urgency—are already so acute that we are in a state of planetary emergency. Immediate action is required.

To be clear, declaring a climate emergency is not an easy decision, and criticisms about the NEA’s implications for democratic governance deserve careful attention. I’ve been quite critical in these pages of bold emergency pronouncements in other contexts — the border wall “emergency” being the most recent example. But the border crisis can’t be described as severe, urgent, catastrophic, or irreversible—characteristics that fairly describe climate change and its impacts. And Congress made clear that the border wall was an improper use of military construction funds; in contrast, senior congressional leaders are actually calling on the president to use his delegated authority and declare a climate emergency.

Finally, critics of any use of emergency powers to address climate change note that what we actually need is for Congress to do its job—and that we must give Congress the opportunity and space to solve big policy challenges. If we had decades  to respond and more than “one shot” for Congress to address climate change, I would also caution restraint. In an ideal world, climate science would transcend legislative gridlock and Congress would have already passed comprehensive climate legislation, or would do so immediately. Yet, at some point we must also be realistic about the likelihood of this occurring soon. After all, the last major piece of environmental legislation—amendments to the Clean Air Act—was passed in 1990 and signed by President George H. W. Bush at a time when environmental issues were far less partisan. The last attempt at climate legislation died in Senate committee in 2009.   Since then, we have lost a critical twelve years.  Attempts at climate legislation continues to be hampered by climate denialism within the Republican party.

Could 10 Republicans—three more than voted to convict former President Donald Trump of inciting the Jan. 6 attack on the U.S. Capitol—come together to pass climate legislation? It’s possible. But I wouldn’t bet the planet on it.

Image: People walk down a flooded street as they evacuate their homes after the area was inundated with flooding from Hurricane Harvey on August 28, 2017 in Houston, Texas. Photo by Joe Raedle/Getty Images

 

About the Author(s)

Mark Nevitt

Associate Professor of Law at Syracuse University College of Law; Previously Class of 1971 Distinguished Military Professor of Leadership & Law at the United States Naval Academy, Sharswood Fellow at the University of Pennsylvania Law School, and former commander in the Navy, serving as a tactical jet aviator and attorney in the Judge Advocate General’s Corps for 20 years. Follow him on Twitter (@marknevitt).