For months the environmental community (like every other Democratic Party constituency) has been bombarding the Biden brain trust with its agendas for what his administration should do starting January 21, 2021. One of the ideas floated is that Biden should take a page from Donald Trump’s playbook and circumvent Congressional deadlock by declaring a “national climate emergency.” Putting aside both the advisability of Trump as a role model for Presidential behavior (disclosure: the author is one of a team of lawyers representing the plaintiffs in a legal challenge to his declaration of an emergency on the southern border, El Paso County v. Trump) and the legal question as to whether the climate situation qualifies as an “emergency,” I don’t think anyone has tried to figure out just what such a declaration would accomplish.
Declaring an emergency under the National Emergencies Act allows the President to do many things–but only as to “Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power.” In other words, a national emergency declaration unlocks specific powers provided in other statutes. According to the Brennan Center, there are 136 such statutes and, as far I can tell, they don’t provide much in the way of tools to combat climate change. I could only find two that would be in any way relevant. One section of the Powerplant and Industrial Fuel Use Act of 1978 provides that “if the President declares a severe energy supply interruption, as defined in section 6202(8) of this title, the President may, by order, prohibit any electric powerplant or major fuel-burning installation from using natural gas or petroleum, or both, as a primary energy source for the duration of such interruption.”
Unfortunately, implementing this would require walking the rather fine line of saying that a shortage of zero-carbon power qualifies as “a severe energy supply interruption” while using zero-carbon power to replace all the natural gas power shut down because of that shortage. And such a declaration can only last a maximum of 90 days. After that, it can be extended only if neither the House nor the Senate object, although this provision (42 USC 6421) may be unconstitutional under the Supreme Court’s subsequent decision in INS v. Chadha, 462 U.S. 919 (1983).
The second provision, 42 USC 6212a, is more intriguing because a national emergency declaration allows the President to put “restrictions on the export of crude oil,” and there is no limit on its duration. This year, the U.S. exported about 8.5 million barrels a day (a little less than 10% of current global daily consumption). But since there is more than enough global excess production capacity to make up that kind of shortfall, I’m not sure what that would do for the climate except perhaps temporarily drive prices up and consumption down. On the other hand, the impact on U.S. oil exporters would truly be something–crude is trading at about $45/barrel, so they would take a hit of almost $400 million a day. And while I can’t guess what the short-term impact on either the U.S. or global economy would be, the impact on the largest customers–Canada, South Korea, the Netherlands, India, etc.–would be Tony Blinken’s first diplomatic nightmare.
So, as far as I can tell, while declaring climate a “national emergency” under the NEA would doubtless be a big media moment, I cannot see how it would successfully help reduce emissions. If I’m missing something, please let me know what it is.
Photo by Patrick Hendry on Unsplash