If The Wall Is A National Emergency, Then What About Climate Change?

WASHINGTON — President Donald Trump’s threat to use emergency powers to fund a border wall would open the door to a future Democratic president using the same authority to declare a national emergency on climate change, members of Congress in both parties say.

If Trump decides to declare a national emergency now, it would “open the door very wide” to future declarations on climate change by a Democratic president, Rep. Peter DeFazio, a Democrat from Oregon, told BuzzFeed News. Unlike building a wall, “climate change is a real emergency,” DeFazio said.

DeFazio wasn’t the only member of Congress to consider that likelihood.

“If Trump can use a legislative stalemate to declare an emergency to divert military dollars to build a border wall… What stops a Democratic President from declaring a climate change emergency and using military dollars to build solar farms and wind turbines?” Sen. Chris Murphy, a Democrat from Connecticut, tweeted Thursday. “Answer: nothing.”

Sen. Marco Rubio, a Republican from Florida, warned Trump of the same issue in an interview with CNBC Wednesday. “We have to be careful about endorsing broad uses of executive power,” Rubio said. “If today the national emergency is border security… tomorrow the national emergency might be climate change.”

This question comes as climate change has floated to the top of the priority list in the new Democratic House, with discussions led by new members like Rep. Alexandria Ocasio-Cortez of New York about developing a bold climate plan called the Green New Deal and the creation of a new climate committee, the House Select Committee on the Climate Crisis.

A climate emergency declaration would depend on whether Trump declares a national emergency and it could also depend on whether his declaration survives a challenge in court, which many Congress members view as unlikely. It would follow a pattern of the Trump administration’s most controversial actions to date being resolved in court, from the multiple iterations of a travel ban (the first two attempts that lost in court and the third was upheld) to the rollback of several environmental rules that were reversed in court.

“That challenge will be almost immediate,” said Rep. Raúl Grijalva, a Democrat from Arizona. Declining to speculate on whether a possible Trump declaration would lead to a slippery slope, Grijalva added: “None of that can be predicted because if he does do that, the courts will decide if it’s constitutional or not.”

And legal experts are mixed on whether Trump’s actions would even have any bearing on a future president’s decision to act on climate change in this way.

“If Trump declares a national emergency for a fake crisis, the southern border, and if he isn’t stopped by Congress or the courts, a later president could presumably do that for a real crisis, climate change,” Michael Gerrard, director of Columbia University’s Sabin Center for Climate Change Law, told BuzzFeed News in an email.

If Trump uses emergency powers to fund a border wall, it’s unclear which statute he will use to do this, Cristina Rodríguez, Leighton Homer Surbeck professor of law at Yale Law School, said, but it’s quite possible it won’t be the same one another president would turn to if they were trying to respond to climate change. She even indicated it may be harder for a president to use emergency authorities to tackle the broader, long-term threat of climate change than the Trump’s more immediate and local concern about the border.

But does it even make sense for a president to go the national emergency route to respond to climate change? A lot of Democrats and lawyers don’t think so.

“The kinds of changes needed to address climate change need to be sustained and durable and to marshal a broad range of societal resources,” Joseph Goffman, executive director of the Harvard Environmental and Energy Law Program, said in an email. “None of that can be achieved through the invocation of emergency powers, so a leader who serious about climate change would never go that route.”