Anti—Anti-#ClimateEmergency

Whether to declare a climate emergency is debatable. But some critics have gone way overboard.   

Should Biden declare a national climate emergency?  There are certainly arguments that, on balance, it would be better not to take that step.  Some opponents argue that declaring a climate emergency would be horribly anti-democratic, polarizing, and counterproductive.  Those arguments seem to me seriously overstated.  I’d like to go through the major arguments against declaring a climate emergency one by one.

A presidential declaration would be based on the National Emergencies Act. That law authorizes the president to declare an emergency. This law doesn’t describe the consequences of declaring an emergency. However, over a hundred other federal laws have provisions that allow the president to take certain actions during a national emergency. I have argued along with others such as Mark Nevitt that some of those powers would be useful in addressing climate change, though they wouldn’t be game changes.

With this background in mind, let’s turn to the arguments that doing so would be a terrible idea.

Climate change doesn’t qualify as an emergency under the emergencies law.  Critics argue that emergency has to be unexpected, while we’ve known about the climate issue for quite some time.  This isn’t an unreasonable argument, but it’s not conclusive either. There are situations that we’d call an emergency even though they were predictable.  For instance, suppose that a river levee is known to be too low for extreme floods. If flood waters are moving down the river, would anyone say that’s not an emergency because we knew it would come someday?  Or would anyone argue that it’s wrong to pile up sandbags on the levee given that Congress refused to fund raising it?

Declaring a climate emergency would be anti-democratic.  Part of the answer to this argument is that a statute passed by Congress does recognize the president’s power to declare an emergency, and that subsequent actions would also be authorized by statutes passed by Congress.  Why is that anti-democratic?  You could argue that major policy decisions should only come from Congress, so this would be a big power grab by Congress. That argument is inconsistent with another argument that critics make, which is that the president wouldn’t actually be able to accomplish much by using statutory emergency powers.  If that’s true, declaring an emergency wouldn’t be a big step forward, but it also wouldn’t be a major power grab.

An emergency declaration would be polarizing.  There’s little doubt that the conservative media would ridicule the idea of a climate emergency and that the GOP base would respond accordingly.  Still, just about any climate action seems to have this effect, including President Obama’s quite moderate Clean Power Plan.  If Biden can’t get substantial GOP support for some version of a green infrastructure plan, you have to wonder whether there’s much to lose by going for an emergency declaration.

There would be a backlash in Congress.  Here, critics point to Trump’s declaration of a national emergency in order to get funding for his border wall.  That did lead to pushback even from members of his own party. That situation seems quite different. Trump issued his declaration after he had already had to cave on the issue legislatively, when Congress wouldn’t give him the funding he wanted even after he forced a government shutdown.  A better analogy would be Trump’s efforts to weaken Obamacare through administrative actions and his Justice Department’s support for a lawsuit to invalidate the law. Those were all bad moves on the merits, but you didn’t see any big backlash in Congress.

It would be a terrible precedent.  Populist leaders in other countries, along with would-be dictators in early times, have used purported emergencies as an excuse to seize power and undermine the rule of law. Declaring a climate emergency wouldn’t have those dire effects, given the limited administrative powers that it would unleash. But it could be seen as legitimating the use of emergency declarations to accomplish all kinds of other policy goals. On the other hand, Trump didn’t need to have any precedent to abuse emergency powers, and it’s hard to imagine that a future authoritarian populist would need past precedent either.

People who believe that declaring a climate emergency would solve all our problems are off-base. But so are those who seem to think the sky would fall.  An emergency declaration is a tool that would have some utility, and a political move that might or might not be productive. It’s certainly not the ideal process for making policy. It’s also not nearly as desirable as getting meaningful climate legislation through Congress.  Nonetheless, we may reach the point where it will be hard to justify turning down any available tool, including this one.

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Reader Comments

4 Replies to “Anti—Anti-#ClimateEmergency”

  1. Re: “— we may reach the point where it will be hard to justify turning down any available tool —“:

    What you most obviously do not realize is that we have already gone past many points of no return, and we are already losing opportunities to use some “available” tools.

    Stop preaching to the choir and learn how to communicate with the public today!

  2. Dan,

    Your point that (a) we are in a climate crisis and (b) that there could be some merit to such a presidential declaration is well-taken.

    There is, however, ample existing executive authority that remains under-utilized, or not at all utilized. One such would allow EPA, on Presidential encouragement, to impose a rising carbon fee on oil, gas and coal producers.

    See CPRclimate.org for details.

    Keep up the good work.

    Dan Galpern, General Counsel and Executive Director
    Climate Protection and Restoration Initiative

  3. Galpern, as you say on CPRclimate.org: ‘Hansen and Galpern urged the President “to make full use of a powerful tool already at your disposal to accelerate the necessary decarbonization of our power, industrial, agricultural, and transportation systems.’

    But you are making the same fatal (for our newest and all future generations) mistake by failing to inform, educate and motivate the Public to demand that politicians and intellectuals Save The Planet Today. It’s bad enough that Congress is risking the overthrow of our Democracy, but they are doing nothing to Save The Human Race in time to produce and perpetuate an acceptable quality of life.

  4. Dan and Dan, we are living in a time when our civilization, especially the future for our newest generations, is increasingly threatened with destruction by the consequences of the failures in leadership by our political and intellectual establishments to meet the challenges of change, and it is a tragedy that you continuously refuse to learn from the Lessons of History where historians Will and Ariel Durant warned us.
    So global warming, violence, authoritarianism and pandemics are out of control to the point where the future is as uncertain today as it was during WWII.
    Your refusals, and fears, to inform, educate and motivate the public because you think we are too impure (per Hofstadter) is killing us.
    The Power of Money has destroyed the academic establishment’s ability to lead, set an example and teach us what we need to know to survive.

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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