Here’s what it could look like if President Biden decides to take that step.
What is emergency power?
Emergency power is a special, temporary authority that a president can invoke in a crisis. The idea is to empower the president to respond quickly to urgent, oftentimes unforeseeable circumstances by essentially creating exceptions to the rules that usually constrain the nation’s leader.
The National Emergencies Act, enacted nearly 50 years ago, requires presidents to formally declare an emergency in order to activate special emergency powers and imposed certain procedural formalities when invoking such powers. Every president since has declared at least one national emergency during his term in office, and 41 are still in effect today, according to a report from the Brennan Center for Justice at New York University School of Law.
The Biden Administration’s Environmental Agenda
President Biden is pushing stronger regulations, but faces a narrow path to achieving his goals in the fight against global warming.
The enhancements to executive power are specific and limited. Another Brennan Center report identified 123 statutory powers that may be available to the president, with no further congressional input needed, upon declaration of a national emergency. In addition, there are 13 that require the declaration of an emergency from Congress.
What could Biden do if he declared an emergency?
Mr. Biden could reinstate the ban on crude oil exports, overturned in 2015, which could slash greenhouse gas emissions by as much as 165 million metric tons each year, comparable to closing up to 42 coal plants, according to a joint study by the advocacy groups Greenpeace and Oil Change International.
He could also halt new oil and gas drilling on more than 11 million acres of federal waters. Environmentalists have been pressing the Biden administration to prohibit drilling throughout the entire outer continental shelf, but Mr. Biden has stayed cautious on that front to avoid alienating the fossil fuel industry and Republicans, who blame his climate policies for the high prices at gas stations. Most energy experts say recent rising gas prices are the result of the Covid-19 pandemic and the war in Ukraine, which has scrambled energy markets.
The Biden administration is already able to do this under a different law, the Outer Continental Shelf Lands Act, which requires the Department of the Interior to issue a plan for new oil and gas leases in federal waters every five years. This month, the Biden administration issued its latest plan, which proposed a menu of options, including ending oil and gas leases in the Atlantic, Pacific and Arctic Oceans but allowing new lease sales for drilling in the Gulf of Mexico and Cook Inlet in Alaska.
The authority from the National Emergencies Act would also allow Mr. Biden to curb fossil fuel imports and exports and to halt millions of billions of dollars of US investment in fossil fuel projects abroad, according to a 2022 report from the Center for Biological Diversity.
Outside of the National Emergencies Act, Mr. Biden also has other options. First, he could marshal private US companies to build more renewable energy and clean transportation technologies under the Defense Production Act. His administration already invoked the act last month to ramp up the production of solar panels, insulation and heat pumps.
Declaring a national emergency would free up federal funds and other disaster relief resources set aside by Congress under the Stafford Act. The Federal Emergency Management Agency would automatically get the power to coordinate those resources, which some experts say could be used to support the construction of renewable energy systems, particularly in the low-income and minority communities most vulnerable to climate disasters.
Would a statement help or hurt?
Some scholars warn that declaring climate a national emergency would constitute an overreach of executive power. In the past, emergency powers have overwhelmingly been used to impose sanctions on foreign groups and officials as punishment for human rights violations or terrorism, or in response to public health crises and disasters. In February, Mr. Biden extended a national emergency regarding Covid-19, and in March he invoked an emergency when halting Russian oil imports.
Emergency powers were never meant to provide long-term solutions to persistent issues, even one as pressing as the climate crisis, said Elizabeth Goitein, co-director of the liberty and national security program at the Brennan Center. The dangerous precedent it would set outweighs the benefits, which would be limited, she said.
“We need Congress” to tackle climate change, Ms. Goitein said. “Issuing an emergency declaration for the express purpose of getting around Congress isn’t an appropriate use of emergency powers in our constitutional system.” It also lets lawmakers off the hook, she said.
But some climate advocates highlight the existential nature of climate change and its consequences.
“This is an unprecedented emergency,” said Jean Su, senior attorney and director of the Energy Justice Program at the Center for Biological Diversity. “If this isn’t what you pull your emergency powers for, then nothing is.”