With reports circulating that it’s a matter of when, not if, President Joe Biden declares a climate emergency to circumvent Congress in reaching his environmental goals, conservatives are gearing up to fight back against what they see as executive overreach.
Biden has been teasing executive action ever since Sen. Joe Manchin (D-WV) torpedoed new spending for climate change in the Senate, single-handedly scuttling the deal in the 50-50 chamber. But if the president decides to go it alone, he’ll face plenty of pushback.
BIDEN DISAPPOINTS ACTIVISTS WITH CLIMATE EMERGENCY TALK AND NOT ACTION
“President Biden’s remarks and actions announced in Massachusetts today show he is taking the same unlawful, go-it-alone, pen-and-phone approach to climate change as President Obama,” West Virginia Attorney General Patrick Morrisey (R) said in a statement. “Thankfully, this approach was just squarely rejected by the Supreme Court in the landmark West Virginia v. EPA case. States like West Virginia will not hesitate to challenge this overreach and enforce the West Virginia v. EPA decision in court.”
Biden spoke Wednesday in Somerset, Massachusetts, to announce a series of climate-related executive orders but stopped short of declaring a climate emergency, which would unleash additional powers and funding under the National Emergencies Act of 1976. His lack of action to date has frustrated progressives, such as activists from Evergreen Action to the Sunrise Movement.
“In the coming days, weeks, and months, President Biden must take bold regulatory and executive action on climate that matches the urgency of the crisis we face,” Evergreen Action Executive Director Jamal Raad told the Washington Examiner the day of the New England speech.
It looks like Raad will get his wish, with climate envoy John Kerry telling a New York Times reporter the president will issue a national climate emergency and is only deciding how and when to use it. Several Senate Democrats have even asked Biden to go over their heads, calling on him to “put us on emergency footing” in a letter.
Conservatives, on the other hand, point to the Supreme Court’s decision curtailing EPA power and the 51 senators opposing such a move to make their case.
“They’re out of options,” said Mario Loyola, who served on the White House Council for Environmental Quality in the Trump administration and now teaches environmental law at Florida International University. “The Supreme Court has closed down the regulatory route, Manchin has closed down the legislative route, so it’s game over. There’s nothing they can do about it with emergency orders.”
Loyola argues that even if Biden declares an emergency, the powers granted under the NEA are limited and deal more with moving money and resources around when there isn’t enough time for Congress to do it, such as after a hurricane.
The nine signatories of the letter to Biden say the NEA could be used to redirect spending to build out renewable energy systems on military bases, implement clean transportation initiatives, and finance energy projects. Other progressives have mentioned the Stafford Act of 1988, which grants presidents the power to make a disaster declaration and provide assistance through the Federal Emergency Management Agency.
Job Creators Network, one of the groups that successfully sued the Biden administration over the vaccine mandate for private employers, says it’s ready to take legal action if any of this comes to pass.
“President Biden continues to try to go around Congress through executive action and the regulatory state and that is illegal and unacceptable,” said Alfredo Ortiz, the conservative group’s CEO. “We won our lawsuit against OSHA’s vaccine mandate for small businesses, taking it all the way to the Supreme Court. If necessary, we won’t be afraid to take legal action again.”
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The NEA has been used to circumvent Congress before, notably by former President Donald Trump in 2019 when he declared an emergency at the southern border to secure funding for the border wall. Progressives will likely mention this incident to justify their position, even if they opposed Trump’s move at the time.
For now, all sides appear to be in a holding pattern as they await further action from the president.
“He’s always said if they, the Senate, won’t, he will take action,” White House press secretary Jean-Pierre said on Wednesday. “He is just taking another step. This is not the final step.”
