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The Role of Emergency Powers in the Mitigation of Climate Change

By Justin Tobey

While the partisan politics of the present casts environmental concerns as controversial, the national security establishment by and large recognizes the seriousness of the threat posed by climate change. In an analysis of the 2017 Intergovernmental Panel on Climate Change (IPCC) report, NASA reported that if the globe warms 2 degrees Celsius past mid-century temperatures, climate change will harm the lives and livelihoods of hundreds of millions of people. Island and low-lying coastal communities can expect to be uprooted by rising sea levels, food scarcity would grow as livestock populations collapse, and incidence of vector-borne illnesses like malaria would increase, along with illnesses associated with poor air quality.

Though the United States federal government has withdrawn from the 2015 Paris Agreement, the rest of the world’s governments and many U.S. states and cities are committed to a goal of limiting global warming to 1.5 C, a goal which the world appears increasingly unlikely to meet. While there are robust legislative proposals for rapidly addressing climate change, primarily the Green New Deal, these proposals remain largely aspirational, without a clear path toward passage into law within the necessary time frame of roughly a decade. Given the severity of the crisis should the world fail to meet the Paris Agreement goals, it should be considered whether a declaration of emergency could provide a future President with the opportunity to make meaningful strides toward climate change mitigation.

President Trump has famously (or infamously) referred to climate change as a China-sponsored conspiracy theory, and under his administration the federal government has worked to suppress internally generated reports about the state of the climate crisis. As such, it is unlikely that emergency powers could be used to divert funds to climate change mitigation until a Democratic successor administration. Yet President Trump’s actions in office may have established precedent which supports such a use of emergency powers. His decision to declare an emergency at the US-Mexico border in 2018 was controversial, but he ultimately succeeded in directing U.S. military personnel to the border, which armed forces members fortified with barbed wire.

The modern legal authority for the invocation of a national emergency comes from the National Emergency Act of 1976, 50 U.S.C. §§ 1601-51. The President can unilaterally declare a state of national emergency, equipping him- or herself with vast powers not ordinarily available. Among these powers is 10 U.S.C. § 2803, which governs emergency military construction. This statute states that “[T]he Secretary concerned may carry out a military construction project not otherwise authorized by law if the Secretary determines: (1) that the project is vital to the national security or to the protection of health, safety, or the quality of the environment” (emphasis added). It is an easy argument to make that climate change threatens the health and safety of United States citizens. However, this argument is not even required; the language of the statute explicitly authorizes projects vital to the protection of the quality of the environment. Although we traditionally think of national security and environmentalism as separate causes, in the twenty-first century we have arrived at a moment where energy, infrastructure, and agricultural policies must be viewed in light of their national and global security implications, and addressed with national security tools.

The emergency construction authorized by 10 U.S.C. § 2803 could take several forms, from renewable energy infrastructure to reforestation. Although America’s energy market is dominated by fossil fuels, renewable energy is the fastest rising power source. The installation of solar, wind, or hydro power generators by the military could go a huge way toward lowering our national emissions. On the other hand, recently reforestation has gained popularity as a potentially groundbreaking method of naturally recapturing carbon. A study released in the summer of 2019 suggested that if the world could meet a goal of planting 1.2 trillion trees, approximately a quarter of the carbon pool could be captured, although these figures are hotly debated within the scientific community. Reforestation has been adopted in Ethiopia, which set a record this summer for the most trees planted in a single day at 350 million, and in China, where in 2018 the government tasked 60,000 soldiers with planting 6.66 million hectares of forest in order to help clean up that country’s pollution problem.

While it is not yet clear what the most effective use of climate emergency resources would be, the gravity of the consequences should we fail to mitigate the climate crisis demands we think creatively about ways to bypass partisan gridlock. There may be disagreements about the most effective method of using such emergency resources, but any such use of military funds would go a long way toward making the U.S. and the world safer than doing nothing.


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