Facing mounting pressure to act on climate change and little hope of passing major legislation, President Biden may soon declare a national climate emergency.
The White House has said that such a move won’t come this week but is still on the table.
Experts told The Hill that declaring a national emergency could open up additional avenues to fight climate change, but also comes with political risks.
Mark Nevitt, a professor at the Emory University’s School of Law, described the declaration as a “skeleton key” that “unlocks the door” to other powers.
“It’s not a silver bullet. It could create a backlash,” he added. “The question is, does it outweigh the political risk?”
The declaration would empower Biden to use the Defense Production Act, which could provide loans that could bolster clean energy deployment, and the International Economic Emergency Protection Act, which Nevitt said could prohibit the imports of “harmful climate products” such as chemical compounds that warm the planet and illegally harvested timber from the Amazon.
Nevitt also said that Biden could deploy military construction powers to build renewable energy projects near military bases or other energy security projects.
Elizabeth Goitein, senior co-director of the Brennan Center for Justice’s Liberty and National Security Program, said a climate emergency could enable the Biden administration to take actions like halting crude oil exports and suspending offshore oil leases. However, she noted, the government would have to compensate companies that are leaseholders.
She also said that statutes that give the president emergency power over transportation and some financial transactions from overseas could be interpreted creatively.
“I’ve heard people advocate that the president use this power to essentially block any buying or selling of fossil fuels,” she said.
Whatever steps Biden potentially decides to take, declaring climate change an emergency could also be symbolically important, publicly conveying the magnitude of the problem.
Nevitt said it could give the president some political leverage with Sen. Joe Manchin (D-W.Va.), who recently backed away from congressional climate talks over concerns about the inflationary impact of additional government spending.
However, Goitein said she was concerned about the precedent of using an emergency declaration in lieu of tackling the climate crisis through Congress.
“My concern is that declaring a national emergency to address climate change would do little to address the actual problem, but would essentially validate the use of emergency powers to address long-standing policy problems,” she said.
In 2019, then-President Trump used an emergency declaration to divert funding for his border wall after he was unable to get the funds through congress.
“One of the main critiques that people, including myself, levied against that emergency declaration is that Trump did it for the express purpose of getting around Congress,” Goitein said.
“In this case, President Biden, if he were to declare a climate emergency, would be using it to get around Congress, and specifically to get around Joe Manchin. That’s not what these powers are for.”
Still, Goitein said she would back the declaration despite her concerns if she knew it was substantial enough to solve the climate crisis “because I’m a mother and I’m more worried about my children having a … habitable planet.”
But, she added, “nobody thinks that the powers available … are sufficient to address the problem of climate change.”
Calls for an emergency declaration have been growing from lawmakers and activists alike, who have fumed at Manchin for halting the climate talks. On Wednesday, Biden called climate change an emergency but stopped short of an official declaration.
Earlier that day, nine senators wrote a letter to Biden calling for both the declaration of a climate emergency under the National Emergencies Act and additional actions at the regulatory level.
“Declaring the climate crisis a national emergency under the NEA would unlock powers to rebuild a better economy with significant, concrete actions,” they wrote.
“Under the NEA, you could redirect spending to build out renewable energy systems on military bases, implement large-scale clean transportation solutions and finance distributed energy projects to boost climate resiliency.”
The idea has already met some backlash from conservatives and industry groups. Several oil industry organizations raised concerns about some of the policies that could be done in tandem with a national emergency and how they would impact energy supplies.
“We are troubled by reports that certain groups have urged your administration to declare a climate emergency for the purpose of advancing false climate solutions, such as banning crude exports or halting new domestic oil and gas development on federal lands and waters,” industry groups wrote in a letter to Biden on Wednesday.
“This action stands in stark contrast to your administration’s clear recognition of the need for greater global supply of oil and natural gas.”