Scholar asserts that the U.S. executive branch can regulate climate change as a national security threat.
Environmentalists often urge the U.S. government to “declare war on climate change.” But can climate change be regulated as if it were a national security risk equivalent to an invading enemy?
The answer to this question is “yes,” and U.S. Presidents may be entitled to national security authority in addressing climate change threats, according to a recent article by Syracuse University College of Law professor Mark P. Nevitt.
Nevitt argues that we are at the beginning of a “climate-security century”—an era in which climate change incites conflict that will “stress, challenge, and destabilize existing legal frameworks.” Drought, food insecurity, coastal property loss, and the displacement of “climate change refugees” may undermine worldwide political stability in the near future.
Notwithstanding these existential threats, leaders in the United States and abroad have often avoided binding emissions reduction targets or framing climate change as a security risk. The Trump Administration went further still and stripped references to climate change from its National Security Strategy in 2017, and withdrew the United States from the Paris Climate Agreement three years later.
One reason for U.S. policymakers’ reluctance to address climate change as a national security risk may be that when environmental and national security priorities conflict, national security interests tend to take precedence.
This prioritization stems from the fact that national security powers are proactive, enabling executive leaders to tackle any “emerging threats” to U.S. national interests or the lives of military members and U.S. citizens—and to displace other laws that may get in the way, including environmental regulations. In contrast, environmental regulations often operate along longer timeframes and follow a cooperative federalism model, which balances state and federal regulatory power to implement laws. As a result, federal climate change regulation stretches emission mitigation across multi-decade timelines in order to give states flexibility, and is often stymied by challenges from states.
In effect, this also means that traditional climate-oriented regulations are often suspended if a President declares a national emergency or issues a “national security determination.”
For example, the Clean Air Act authorizes the President to exempt fossil fuel-burning power plants from emissions regulations “if it is in the national security interests of the United States to do so.” And the Administrative Procedure Act—which provides a way for environmentalists to challenge inadequate actions by the U.S. Environmental Protection Agency (EPA) —”exempts ‘military or foreign affairs’ functions” from typical rulemaking procedures.
But what happens if excessive emissions—and resulting climate change—are the cause of persistent national security threats? In such situations, Nevitt answers that the federal government is empowered, both in theory and under statutory law, to address environmental threats under national security policy. In short, he claims that under U.S. law climate change should be treated as national security threat.
Nevitt argues that national security law’s emphasis on strategic planning and its embrace of “multifaceted,” non-traditional threats are both well-suited to tackling climate change risks. He also notes that the United States would be following the United Nations Security Council in identifying climate change as a distinct security issue, as the Council has declared in recent resolutions. In addition, the U.S. Department of Defense’s experience with intelligence-gathering and risk assessment can assist in evaluating climate threats—and its “massive” infrastructure and budget can ensure that threats are handled rapidly.
Furthermore, Nevitt posits that an existing statute may be used to address climate change in a national security context. Former President Donald J. Trump demonstrated the breadth of executive national security powers when he invoked the 1976 National Emergencies Act to address immigration as a non-traditional “threat” and to declare a “border security crisis.” Similarly, if another President declares that climate change is a national emergency under the National Emergencies Act, such a declaration can trigger 136 other statutory provisions, giving the executive branch expanded powers in terms of asset seizure, military and national defense, land management, public health, and international relations.
Although Nevitt predicts that the fossil fuel industry would challenge a climate change emergency declaration, a President could defend such a declaration on the basis of an “express or implied authorization” under the Emergencies Act. An emergency declaration may also receive more deference in court if the President refrains from seizing U.S. fossil fuel facilities; the Act grants a President wider latitude for using “instruments of national force against the outside world” and less if such power is “turned inward” on domestic companies.
Beyond theory and statutory law, courts may be open to the framing of climate change as a hostile invader. In Massachusetts v. EPA, the U.S. Supreme Court held that the Clean Air Act authorizes EPA to regulate greenhouse gas emissions if EPA finds that such emissions contribute to climate change. Nevitt argues that EPA’s mandate to “protect” Massachusetts from air pollutants implies that the federal government has a “special duty” to protect states from injury—“not unlike if Massachusetts was invaded by a foreign enemy.”
In addition, at least one federal judge, in the recent case of Juliana v. United States, appears to have accepted the characterization of storms, floods, and other harms from climate change as creating a “national security destabilization” and posing threats to “security, health, and welfare.” Although the Juliana plaintiffs lost before the U.S. Court of Appeals for the Ninth Circuit in 2020, the dissenting judge suggested that the federal government’s failure to address climate change may violate its promise under Article 4 of the U.S. Constitution to protect citizens “against Invasion and against domestic violence.”
Currently, the Biden Administration has prioritized executive action on climate change through non-national security avenues. But if this Administration, or future administrations, become mired in legal challenges or otherwise drift back toward “climate inaction,” addressing climate change as a national security threat may create pathways for action, Nevitt argues. He notes that even at the height of the Trump Administration’s rollback of environmental regulations, the Administration still enacted climate change legislation targeted at protecting military infrastructure against climate-intensified storms and flooding.