The Biden administration, which entered office with ambitions of implementing a transformative agenda to combat climate change, now finds itself at a crossroads on climate. Last Thursday, Sen. Joe Manchin, the conservative Democrat from West Virginia who last year derailed the “Build Back Better” special spending bill, once again single-handedly torpedoed a smaller, $300 billion package that would have invested in renewable energy and electric vehicles.

Manchin’s opposition to the bill, which he chalked up to concerns around rising inflation, comes at a time when the effects of climate change are becoming starkly clear: an unprecedented heat wave sweeping Europe and towering waves crashing on the shores of Hawaii. 

Congress’s failure to act has President Biden preparing to go it alone. In a statement last week, Biden said, “[I]f the Senate will not move to tackle the climate crisis and strengthen our domestic clean energy industry, I will take strong executive action to meet this moment.” But what can he do, really? 

One option is to declare a “national emergency.” On Monday, White House press secretary Karine Jean-Pierre signaled that such a move is possible but not imminent. “I would not plan an announcement this week on a national climate emergency but we still have it on the table,” she said. “It’s just not going to be this week on that decision.”

A declaration of national emergency would grant Biden additional authority under the National Emergencies Act, which was passed in 1976 to help presidents respond to acute — and often unforeseen — emergencies. Invoking the act in response to a long-term crisis like climate change would be unusual. Recent uses of the emergency authority tend to involve foreign policy, like freezing Russian assets, enforcing sanctions, and freeing up resources to combat the humanitarian crisis in Afghanistan. But there have also been more generalized — and overtly political — uses of the authority, like former President Trump’s 2019 declaration of a “National Emergency Concerning the Southern Border of the United States.”

On Wednesday, a group of progressive Senators led by Jeff Merkley (D-OR) and Bernie Sanders (I-VT) sent a letter calling on Biden to invoke the act. The letter specifically requests that the President use his emergency authority to “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.” But according to a frequently-cited report by the Center for Biological Diversity, there are also more aggressive potential uses of the authority, like reinstating the ban on crude oil exports, halting offshore oil and gas drilling, and limiting U.S. investment in fossil fuel projects abroad. 

The chorus of voices calling on Biden to act unilaterally has some constitutional lawyers concerned about the potential for abuse of executive power. Elizabeth Goitein, the director of the Brennan Center’s Liberty and National Security Program, wrote last year in the Washington Post that “[u]sing emergency powers to address [climate] would be a misuse of those powers — one that carries significant risks for our democracy without providing the tools we need to confront the challenge.” 

Since the National Emergencies Act provides no specific definition of “emergency,” Goitein wrote, presidents are on the honor system to invoke emergency powers within the bounds of accepted norms. One of those accepted norms is that emergencies are unexpected. Goitein pointed out the hypocrisy of allowing certain executive action based on policy preferences and not principle. “[W]hen President Donald Trump declared one to secure funding for a border wall, his critics, including me, pointed out that the word ‘emergency’ has an established definition,” she wrote. “Part of that definition is the element of surprise: Emergencies are, among their features, sudden or unforeseen.”

Without clear boundaries, Goitein argued, the emergency authority could amount to a permanent end-run around Congress. “These powers carry significant potential for abuse, given how easily they can be invoked and the vast authorities that some of them provide. If we concede that they are available as a congressional workaround, policy disputes could become an excuse for presidential power grabs.” 

President Biden has already taken several unilateral steps to address the changing climate, including rolling out a number of policies just this week to stem the impact of heat waves. And last year, Biden invoked the Defense Production Act — another mid-20th-century executive authority — to accelerate domestic manufacturing of solar panel parts and lithium mining for electric vehicles.

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