Here’s What Biden Can Do — and Can’t Do — After Declaring a Climate Emergency


The White House is weighing whether to seize executive powers to take action on climate.

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(Bloomberg) — Democrats and environmental activists are pushing President Joe Biden to declare a “climate emergency” and unlock sweeping powers to combat global warming after broad legislation stalled in Congress. 

Biden has already vowed to “take strong executive action” if Congress doesn’t “tackle the climate crisis.” And White House officials are now weighing the possibility of an emergency declaration that would empower the president to curtail oil drilling, curb fossil-fuel flows and fund clean-energy construction. 

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How would it work?

An emergency declaration by Biden would trigger powers laid out by a suite of federal laws — including energy statutes, the National Emergencies Act and the Stafford Disaster Relief and Emer­gency Assistance Act — that the president could wield to address the climate crisis.

Biden could curtail or block crude exports thanks to a national security exemption in a 2015 law that would allow him to re-impose licensing requirements and other restrictions on those flows. At the same time, the Aviation and Transportation Security Act — enacted after the Sept. 11, 2001 terror attacks — could empower him to coordinate domestic transportation in ways that limit the movement of fossil fuels.

Under the Outer Continental Shelf Lands Act that governs energy development in US coastal waters, he could also suspend offshore drilling, even on existing leases. That provision was invoked to suspend some activity in the wake of the Deepwater Horizon disaster in 2010.

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What about clean energy?

A climate emergency would let Biden take advantage of a law typically used after major hurricanes and other natural disasters — the Stafford Disaster Relief and Emergency Assistance Act — to direct the Federal Emergency Management Agency to construct renewable energy projects using federal money.  FEMA has $19 billion budgeted for fiscal year 2022 to address ongoing disasters, according to the Center for Biological Diversity, an environmental group urging the move.

Biden could also use the Cold War-era Defense Production Act and the federal procurement budget of $650 billion per year to manufacture clean transportation technologies and generate renewable energy, according to a report by the center. Biden has already used the same law to boost production of baby formula amid a national shortage. But the law specifically contemplates power production; the statute uniquely singles out renewable energy and storage as as critical materials for national defense.

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What can’t he do?

Some of the most powerful tools for propelling renewable power projects and advanced energy manufacturing were tax credits — now stymied in Congress — that can’t be easily duplicated through executive order. Any federal funding directed at the sector is finite, and can be quickly ended once a new president is in office. 

Halting production on existing oil and gas leases is also tricky. The government might have to compensate oil companies for suspended or canceled oil and gas leases they purchased for hundreds of millions of dollars but can no longer use. That could be anathema to climate activists — as well as fiscal conservatives. 

Who supports an emergency declaration? 

Biden is getting an earful from congressional supporters of the approach now, though progressive climate activists have been urging the president to deploy emergency powers against global warming for more than a year. 

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Congressional backers include Senate Majority Leader Chuck Schumer and other Democrats, including Senator Ed Markey of Massachusetts, Representative Alexandria Ocasio-Cortez of New York and Representative Jared Huffman of California.

The strategy is also backed by environmental groups, including Friends of the Earth, Food and Water Watch and more than 1,000 other organizations that sent a letter to Biden urging the approach.

What are the risks?

Any moves to halt oil and gas production could be politically disastrous for Biden, whose administration is working to lower high pump prices before midterm elections and has promised to bolster energy flows to European allies following Russia’s invasion of Ukraine.

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And while there’s precedent for using a national emergency declaration in creative ways — for instance, former President Donald Trump did so to divert military construction funding to build a wall along the US-Mexico border — the power isn’t without limits. The efforts would surely be tested in federal courts that have been reshaped by the confirmation of conservative jurists nominated by Trump. The Supreme Court just underscored that risk with its 6-3 ruling eroding the Environmental Protection Agency’s flexibility to limit greenhouse gas emissions from power plants.

“Although courts have generally given presidents wide latitude on emergency declarations,” big steps to limit fossil fuel production, transportation and consumption “could be vulnerable to legal challenge,” said Benjamin Salisbury, director of research at Height Capital Markets.



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