President Biden stopped short of declaring a national emergency for climate change in his most recent executive actions. But he may still do so in the future, and some of his advisors have indicated that he will do so, although it is unclear if this is still in play with the recent passage of the Inflation Reduction Act of 2022. Indeed, the passage of this landmark legislation is a welcome reprieve from executive actions that are limited, challengeable, and reversible as the political winds shift.
The debate is well-trod territory: Is executive action a necessary tool as Congress continually fails to act, or does it largely amount to presidential overreach? And is the impact really meaningful and lasting, or merely cosmetic when more lasting legislative action cannot be accomplished? Adding to this is the appropriateness of an emergency declaration under existing mechanisms like the National Emergency Act (NEA) or the Robert T. Stafford Act, which are commonly used for national emergency or disaster declarations.
Ultimately, executive action alone is unlikely to deliver what we need: robust and sustained climate action.
Nevertheless, the use of presidential executive authorities has remained strong in recent years, ranging from President Obama’s use of the Clean Air Act to regulate greenhouse gas emissions nearly a decade ago to President Trump’s use of the NEA to redirect federal military funding to construct a wall on the southern border, and most recently the Stafford Act for the COVID-19 pandemic (among other authorities). Not to mention the hundreds of executive orders generally doled out per president.
Biden also hinted at such unilateral action. Although stopping short of declaring an emergency, he issued three executive orders expanding offshore wind, expanding heat emergency assistance for low-income households, and infusing FEMA’s Building Resilient Infrastructure and Communities grant program with $2.3 billion – none of which even begins to move the needle on climate mitigation.
The NEA and the Stafford Act have been two of the strongest tools at Biden’s disposal. Both have their challenges.
Section 201 of the NEA authorizes the president broad discretion to declare a national emergency, which gives access to presidential authorities embedded in existing statute. However, the declaration can be reversed via three ways: automatically at the 1-year anniversary of the declaration; anytime, by presidential proclamation (whether by the current or future president); or via a joint resolution passed by Congress, assuming the President does not issue a veto (as Trump did during his border emergency). The president could get by these hurdles by renewing the emergency, but given the outlook for the midterm elections and the President’s current approval rating, any action would likely be short-lived.
Using NEA, Trump ultimately was able to redirect $15 billion to the border wall over two years, but the end product was unnecessarily expensive and incomplete. Not exactly a vote of confidence for a climate emergency’s ability to deliver a revival of Biden’s Build Back Better Act (BBBA) – a $2 trillion ($555 billion climate-specific) investment implemented over 10 years.
Alternatively, Biden could use the Stafford Act in much the same way Trump did for the COVID-19 pandemic. Depending on the type of declaration, this could potentially unlock Disaster Relief Fund dollars (currently at $25 billion – well below BBBA’s $555 billion for climate) expensed through grant programs under Public Assistance, Individual Assistance, and the Hazard Mitigation Grant Program. However, these programs are specifically written for disaster assistance – e.g., debris removal, restoration of damaged facilities, evacuation and sheltering etc. – not clean energy tax credits, clean transportation, or penalties for polluters. The challenges in congress, courts and beyond would likely be significant, and ongoing disaster assistance would be held up in the cross-fire, delaying assistance to impacted communities at a time when climate change is driving more intense and frequent disasters.
Ultimately, these emergency vehicles were not designed for situations with no clear end point. Enter litigation and presidential election cycles. Even if an emergency declaration – Stafford or NEA – survives to this point, it would face a Supreme Court that has already proven unfriendly to what it perceives as administrative overreach (see the recent West Virginia v. EPA ruling). And as with any executive action, it can be undone the moment Biden leaves office.
We are not ready for the climate crisis. To truly tackle climate change, we need the kind of long-term solutions you can only get from legislative and regulatory action. This will not come with a razor-thin simple majority, but requires reaching across the aisle, compromise, negotiation, and ultimately action that lasts. Time will tell whether the recent Inflation Reduction Act – projected to reduce carbon emissions by roughly 40 percent by 2030 – might so deliver. As well as whether or not the hyper-partisan vote count is replicable, whether this will be an anomaly, or whether more bi-partisan support will come for future legislation. But if so, it marks an important step towards more legislative action to combat climate change. Executive action in isolation is, at best, a distraction and, at worst, will have unintended consequences for disasters and emergency declarations within the scope and intent of these vehicles that get caught in the legal and political crossfire that is sure to follow.
Lucia Bragg is Policy Manager at the National Center for Disaster Management at the Columbia Climate School.
Jeff Schlegelmilch is the director of the National Center for Disaster Management at the Columbia Climate School. He is also the author of Rethinking Readiness: A Brief Guide to 21st Century Megadisasters, published by Columbia University Press.