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What Can a President Do During a National Emergency Over Climate Change?

Environmental law experts say the presidential powers unlocked by declaring a national emergency are the wrong tools for solving the climate crisis.
Bernie Sanders.

Bernie Sanders criticized Donald Trump's declaration of a national emergency at the border, and suggested that climate change was a "real" national emergency.

On Friday, President Donald Trump declared a national emergency in order to secure funding for the border wall. The declaration has been widely criticized as a legally questionable end run around Congress, which refused to fund the border wall in full in the latest shutdown deal that Trump himself signed. Indeed, even prominent Republicans warned the president that the move could set a dangerous precedent.

"We have to be careful about endorsing broad uses of executive power," Senator Marco Rubio (R-Florida), told CNBC. "If today, the national emergency is border security ... tomorrow the national emergency might be climate change."

Meanwhile, some Democrats embraced the idea. Senator Bernie Sanders (I-Vermont) called the climate crisis a "real" national emergency, and freshman congresswoman Ilhan Omar (D-Minnesota) tweeted Friday, "Our next President should declare a national emergency on day 1 to address the existential threat to all life on the planet posed by Climate Change."

Some future president would have no trouble finding evidence that climate change is a dire and immediate threat to our national security and safety: The Pentagon has long-called climate change a "threat multiplier" that leaves both military bases and the American public more vulnerable to everything from diseases to terrorism.

But would declaring a national emergency help solve the climate crisis? Most legal experts say it won't.

Notably, declaring a national emergency does not give a president cart-blanche to enact any policy proposal he or she desires. "What happens when a president declares a national emergency is not that he gets to do whatever he wants," says Andrew Boyle, counsel in the Brennan Center for Justice's Liberty and National Security Program. "It just gives him access to certain powers that are usually dormant."

And while there are more than 130 statutes that a president can invoke to deal with a national emergency, few of them are directly applicable to solving the climate crisis. A president could tap a provision that allows him or her to seize control of offshore drilling on the continental shelf, for example, or another that allows the executive branch to guarantee loans to private companies providing essential services, which could be used to bolster renewable industries. Another emergency provision could allow the president to prevent members of the military from retiring so they're available to deal with the fallout from climate change-related disasters. But, according to climate experts, these measures would be like putting a Band-Aid on a cut that requires stitches.

"Clearly climate change is, in a big picture sense, an emergency, and it requires rapid, immediate, and large-scale transformation of the American economy and a complete transition away from fossil fuels, and that needs to happen quickly as well. But it's not an emergency in the narrow legal sense that various statutes authorize the president or the executive branch to take emergency action under," says Michael Burger, the executive director of the Sabin Center for Climate Law at the Columbia Law School. "The only reason anyone is even talking about this is because of the clear abuse of power that Donald Trump is seeking to carry out right now."

Any president who takes climate change seriously should be wary of following in Trump's footsteps and using emergency powers to address global warming, according to Joseph Goffman, the executive director of Harvard Law School's Environmental and Energy Law Program—even if the courts ultimately uphold what Goffman says is a clear abuse of Trump's presidential powers.

"First of all there's a possibility that congress will try to amend or change the statute in order to limit the president's power," Goffman says, "and so a deft successor to Trump would probably want to avoid provoking that." Second, he adds, any president who understands the scale of the societal transformations that climate change necessitates, and the broad political and public support that such efforts will require to succeed, would not want to anger an entire political party through unilateral action.

"Climate change is going to require a significant reinvestment and reinventing of basic infrastructure that involves lots of players buying into the solution and sustaining that kind of effort over a long period of time, so if you're serious about it as a president, you're going to work pretty hard on creating a politics of buy in, and then you're going to put together a big fat toolbox of policy solutions and direct and indirect investments," Goffman says. "That's just in a whole different universe from the kind of ill-defined tools that are available here."

"There's no getting around the fact that dealing with climate change is going to engender conflict and disruption for at least parts of the economy or parts of society, but you deal with that problem by building coalitions," he says.

Political concerns aside, a president already has some executive authority to deal with climate change without congressional approval and without declaring a national emergency. Under a provision of the Clean Air Act that addresses international air pollution, for example, the president has the authority to "enact a nationwide, economy-wide, market-based system to address climate change," Burger says. "The Clean Air Act also authorized the executive branch to regulate emissions from a wide variety of sectors including most, if not exactly all, of the primary sources of greenhouse gas emissions in the United States."

Goffman predicts that controversy over Trump's national emergency declaration will make future presidents reluctant to use emergency powers, but both Boyle and Burger say that, if Trump's declaration is allowed to stand by the courts, future presidents could abuse this executive power for all kinds of issues, not just climate change. "Maybe the turmoil will make future presidents reluctant to use emergencies but if the president can so blatantly abuse these powers, maybe future presidents will say, 'well, the bar has been lowered now. Why shouldn't I use emergency powers as frequently as they are useful to me?" Boyle says.