By Ryan P. Burke
On his 20th day in office, President Biden declared a national emergency regarding the situation in Burma, citing “an unusual and extraordinary threat” to U.S. national security. Most Americans probably cannot identify Burma on a map (pro tip: it’s also called Myanmar), describe the situation there, or articulate how it is an “extraordinary threat” constituting a U.S. national emergency. And that is the problem. From civil war in a country most Americans know nothing about to global climate change, a national emergency can be anything a president wants it to be. But just because it can be doesn’t mean it should be.
For every pundit insisting climate change is an emergency, another insists it isn’t. These are circular arguments that miss the point. There is no legal definition of “national emergency.” Because of this, the National Emergencies Act (NEA) has become an evasion mechanism for presidents to achieve political goals by sidestepping legislative stagnation. The result is continued norms-erosion of presidential restraint, logic and measure in favor of procedural convenience. Declaring a national emergency should require more fidelity.
In 2019, before former President Trump’s border crisis emergency declaration, Sen. Marco Rubio (R-Fla.) warned that a climate emergency declaration would follow. Rubio may be right. The upcoming Senate vote on a $3.5 trillion infrastructure bill is a litmus test for President Biden’s climate change agenda. Its fate also may indicate whether climate change becomes the next U.S. national emergency.
Emergencies require temporary suspension of norms. When we think of true national emergencies, most identify events such as 9/11 or the COVID-19 outbreak. However, nearly all of the 62 national emergency declarations since the NEA became law in 1976 were not emergent situations necessitating the use of extraordinary executive power. The NEA’s wording is the reason.
The NEA framers avoided defining “national emergency,” preferring a more flexible law that is open to interpretation. The NEA’s legal home as one of 58 chapters in Title 50 — War and National Defense — signals how and when it should be used. But the NEA’s failure to define emergency or stipulate criteria for national emergency declarations within this legal lens produced a legislative package enabling presidents to declare national emergencies for things such as corruption in Zimbabwe. Today, the NEA serves as a way for a president to bypass mechanistic legislative processes and direct real government resources toward a pet project, regardless of whether it is a) an emergency or b) in any way related to war or defense.
Enter climate change. The “climate crisis” is akin to the “Austin Powers” steamroller scene where Austin commandeers a steamroller and (slowly) drives toward an unmoving character screaming “No!” for 15 comical seconds before getting run over. Climate change is coming at us like Austin’s steamroller, but it is hardly an emergent situation. Still, the progressive wing of the Democratic Party wants Biden to declare a national emergency over climate change. Why? Because a bipartisan climate bill promising real carbon emissions-reduction has the equivalent of a snowball’s chance in hell at making it to the president’s desk. If Trump’s border crisis was a national emergency, progressives say, then surely Biden’s climate crisis is too, right? Wrong.
The NEA is a mechanism intended for temporary suspension of processes enabling the government to dedicate resources during times of war or defense. Full stop. Trump’s border declaration linked explicitly to national defense — albeit of questionable urgency for an emergency declaration — directing the “Armed Forces to provide additional support to address the crisis” at the border. Regardless of one’s position on the necessity of the order, it was undeniably within the scope of the Department of Defense’s (DOD) homeland defense mission, which defines illegal immigration as a transnational threat. Biden knows this.
In order to justify a national emergency declaration, he must link climate to national defense and security. This is precisely what his executive order did a week into his presidency, stating climate is at the “center of United States foreign policy and national security.” And the DOD is on board, now referring to climate change as a “critical national security threat.”
However, linking climate change to a matter of war and defense is a stretch. DOD’s principal concern is the climate’s effect on its global basing network, much of which it deems at risk to future sea level rise. The Pentagon says losing bases degrades military readiness and hinders ability to prepare for war and provide for the common defense — but in 2100, not in 2021. Will Biden declare a climate emergency now to mitigate effects of something that might happen 80 years in the future? Probably.
Attempting to justify climate change as an emergency within the war and defense lexicon is a slippery slope. The discussion over whether climate change is a national emergency is the latest anecdote indicating that the NEA is broken. This 20th century law is not fit for 21st century purpose and should be revisited. Citing climate risk to DOD coastal bases to justify a national emergency declaration is one thing. But if climate-induced sea level rise is the national security threat today, will the United States declare war on India for failing to reduce its carbon emissions tomorrow?
Ryan P. Burke, Ph.D., a veteran Marine Corps officer, is a professor of Military and Strategic Studies at the U.S. Air Force Academy and a nonresident fellow with the Modern War Institute at West Point. He is on sabbatical pursuing a master’s in public administration at the Harvard Kennedy School of Government. The views expressed here are his and do not reflect the official position of the United States Air Force Academy, Department of the Air Force, or Department of Defense.
This article appeared on The Hill website at https://thehill.com/opinion/energy-environment/565260-break-glass-in-case-of-emergency-but-not-for-climate-change