The likelihood of any sort of major legislation that would address the very real threat of climate change passing through the U.S. Senate is extremely unlikely. President Biden’s Build Back Better Act failed to pass, and negotiations for a new spending bill that includes funds for clean energy has been stifled by coal kingpin Joe Manchin. For Biden to make any sort of progress on his promise to address the climate crisis, he’ll almost certainly need to take action on his own. That’s why some are calling for the president to declare a climate emergency.
For the first time, it seems like the administration is actually considering the possibility (though the ever-cautious Biden may back off for the time being in order to keep conversations with Manchin open). So what would happen, exactly, if Biden finally made good on his promise to address climate change and decided to declare a climate emergency to get it done?
How could Biden declare a climate emergency?
He would have to invoke the National Emergencies Act. This is done by signing an executive order, which means Biden could do it solely with the power of the presidency and the stroke of a pen, rather than needing to get a bill through Congress.
What would declaring a climate emergency do, exactly?
A criticism of declaring a national emergency that is sometimes raised is the idea that it’s simply a symbolic gesture — one that acknowledges the seriousness of the situation but doesn’t do enough to actually fix it. Think of Biden’s executive order on abortion and contraceptives following the repeal of Roe v. Wade as an analogy for how ineffectual the approach of executive action can be compared to judicial or legislative action.
However, using the National Emergencies Act opens up the toolbox for the Biden administration. According to an analysis from Legal Planet, invoking this law would give the White House access to more than 130 statutes, which the Biden administration could then use to address the causes of climate change. What those statutes are exactly is often vaguely defined by design: They’re meant to offer the executive branch broad additional powers during a time of crisis.
So what could the Biden administration do after declaring a climate emergency?
Because the statutes available during an emergency are so ill-defined, it’s hard to say what the Biden administration could and couldn’t do that would hold up in the courts. But there is a lot that the administration can at least try.
Legal Planet suggests that the White House could effectively suspend all oil drilling on federal land, as all leases have clauses that allow them to be temporarily shut down during an emergency. Biden might also ask the Department of Transportation to restrict the use of gas-guzzling trucks and other vehicles, as the agency is given the power to “coordinate transportation” in case of an emergency.
“That declaration is the only step Biden needs to take to catalyze major action like reinstating the crude oil export ban, the climate equivalent of closing 42 coal plants,” Jean Su, the director of the Center for Biological Diversity’s Energy Justice program, tells Mic.
These are the more dramatic possible options though — and given how risk-averse the administration has been, they seem unlikely to be the immediate next steps. What seems more likely is using the emergency to ramp up production of wind, solar, and other clean power sources.
“Through his emergency powers, the president can speed the construction of resilient, renewable energy systems in vulnerable communities,” Su says. Using the National Emergencies Act in company with the Defense Production Act, which allows the president to require businesses and corporations to prioritize contracts for materials deemed necessary for national defense, it’s possible that Biden could rapidly expand the clean energy capabilities of this country. The Defense Production Act was used during the coronavirus pandemic to quickly produce personal protective equipment and COVID tests and could be used again to address a climate emergency.
That would mean dramatically increasing the speed and volume of production of solar panels and wind turbines. It could also include the actual building of the infrastructure to support these carbon-neutral power sources, as Biden could extend loan guarantees to industries to motivate a faster build-out. Legal Planet suggests the declaration could additionally be used to accelerate the production of electric vehicle batteries to more quickly get EVs onto roads.
Under a climate emergency, Biden could also mobilize the Federal Emergency Management Agency (FEMA) to conduct a rapid response to climate disasters — including addressing the issue of preparedness in communities most at risk. Su says that Biden could direct the agency to ban the construction of new fossil fuel infrastructure in vulnerable communities to address climate-related disasters, as well as push for new construction of renewable energy systems to make those areas more resistant to natural disasters.
How long could a climate emergency last?
If Biden were to declare a climate emergency, there is an opportunity for rapid and drastic change almost immediately. But just how long could it go on? David Spratt, a research director at the Breakthrough National Centre for Climate Restoration in Australia, notes that emergencies declared by a president must be renewed every year. Still, “some have remained active for several decades,” he tells Mic.
That means that Biden could conceivably maintain the emergency declaration for the duration of his term. It also means that the protection is pretty flimsy beyond 2024. If Biden (or another Democrat) were to lose the election, it’s pretty easy to see a Republican president immediately ending the climate emergency.
Is declaring a climate emergency an extreme step?
Surely, if Biden were to bypass a do-nothing Congress and choose to use executive powers to declare a climate emergency, there would be lots of pushback. But the United States would be far from the first country to acknowledge the reality of climate change. In fact, at least 39 countries around the world have beaten the U.S. to the punch. The European Union, Canada, Japan, and New Zealand have already taken this step, as have nearly 2,250 jurisdictions and local governments around the world. Some city councils in the U.S. have already declared a climate emergency.
Federal powers extend considerably further than any of the authority of local governments, but it is clear that some communities in the U.S. have recognized the reality of the current crisis and are looking for support. By declaring a climate emergency, Biden could offer additional help and resources to those communities.
Okay! So will Biden declare a climate emergency?
While the president has reportedly started to consider the possibility of declaring a climate emergency, it seems unlikely that he’ll actually act on it. The Biden administration appears to want to exhaust every possible option prior to reaching for the emergency powers, including carrying on negotiations with Manchin, the major Democratic holdout in the Senate, despite the fact those conversations sure seem to be happening in bad faith. So Biden will likely continue to refer to climate change as an emergency, but fall short of making that official.
