Presidential Declaration of Climate Emergency: NEA and Stafford Act

Presidential Declaration of Climate Emergency: NEA and Stafford Act

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INSIGHTi

Presidential Declaration of Climate
Emergency: NEA and Stafford Act
July 26, 2022
This Insight provides selected considerations related to the President’s ability to declare a climate
emergency under the National Emergencies Act (NEA; 50 U.S.C. §§1601 et seq.) and/or the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (Stafford Act; 42 U.S.C. §§5121 et seq.). Table 1
lists key features of each declaration.
National Climate Emergency Declaration
During the week of July 18, 2022, media sources reported that President Joseph R. Biden Jr. was
contemplating declaring a “national climate emergency” to address the nationwide effects of climate
change. The reports did not specify the authority the President was considering leveraging. Potential
vehicles include declaration authorities provided under the NEA and/or the Stafford Act.
NEA Declaration of Emergency
President Biden likely could declare a national emergency pursuant to the NEA regarding the effects of
climate change on the United States. Although no previous President has ever declared a national
emergency under the NEA related to climate change or the environment, the statute does not explicitly
preclude such a declaration.
When declaring a national emergency under the NEA, the President generally activates one or more
emergency authorities (also referred to as “standby authorities”), which may also be invoked subsequent
to the declaration. Many of these emergency authorities are found in the U.S. Code, and they may be
related to, for example, public health, asset management, or international relations. More than 100
standby authorities are available. It is possible that some could be used to address climate change,
depending on legal interpretations and limitations on such authorities.
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Stafford Act Emergency Declaration
Typically, the President declares certain incidents as emergencies or major disasters under the Stafford
Act in response to requests by governors or tribal chief executives. However, the President may also
unilaterally declare an emergency under Stafford Act Section 501(b). With the exception of the
nationwide emergency declaration for the COVID-19 pandemic, past unilateral emergency declarations
were made for rapid-onset incidents involving federal property (e.g., the Oklahoma City bombing).
While the statute does not specifically preclude the use of this authority to address climate change, such a
declaration could pose numerous challenges, including strain on the federalist framework of the Stafford
Act, as well as significant changes to FEMA’s operations. For example, Stafford Act declarations
generally authorize limited federal support for rapid-onset events that cause measurable damage in a
particular geographic area during a defined period of time. Establishing temporal and spatial limits for a
climate change emergency could prove impossible. Further, Stafford Act assistance is intended to redress
losses directly attributed to a discrete declared incident. It is unclear how FEMA would attribute losses to
climate change.
Additionally, a Stafford Act emergency declaration may not provide the types of assistance most relevant
to address the consequences of climate change. For instance, hazard mitigation assistance and assistance
to rebuild public facilities are only available pursuant to a major disaster declaration. Thus, emergency or
major disaster declarations authorized for discrete events exacerbated or intensified by climate change,
like hurricanes and wildfires, may more effectively assist those affected.
Comparing the NEA and Stafford Act
NEA and Stafford Act declarations are distinct and have different implications. An NEA declaration of
emergency does not invoke Stafford Act authorities, and vice versa. NEA declarations are generally
considered efforts to protect the whole nation; Stafford Act declarations are generally for incidents that
affect a specific state/territory/tribe. In certain cases, both may be invoked simultaneously, as with the
COVID-19 pandemic response. In addition, some external statutory and regulatory structures use Stafford
Act declarations as triggering events.

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Table 1. Comparison of Selected Features of the National Emergencies Act and the
Stafford Act

National Emergencies Act
Stafford Act Emergency
Statutory Authority
50 U.S.C. §§1601 et seq.
42 U.S.C. §§5121 et seq.
Definition of emergency
No definition of national emergency or
“.. any occasion or instance for which,
emergency.
in the determination of the President,
Federal assistance is needed to
supplement State and local efforts and
capabilities to save lives and to protect
. . public health and safety, or to lessen
or avert the threat of a catastrophe in
any part of the United States” (42
U.S.C. §5122(1)).
Scope
Nation as a whole.
All or selected designated areas within
a state/territory/tribe.
Process
A proclamation (or executive order)
Generally, a tribal chief executive or
declaring a national emergency shall
governor requests an emergency
immediately be transmitted to
declaration and specific forms of
Congress and published in the Federal
assistance. 42 U.S.C. §5191(b) allows
Register (50 U.S.C. §1621).
the President to unilaterally declare an
emergency for certain emergencies
involving federal primary responsibility.
Timing/Termination
The President may terminate an
FEMA determines the incident period—
emergency by issuing a proclamation,
“time interval during which the
or by not publishing a continuation
disaster-causing incident occurs” (44
notice (which must meet certain
C.F.R. §206.32(f)). Amendments to the
conditions). Congress and the
emergency declaration are published in
President may terminate an emergency
the Federal Register (44 C.F.R. §206.40).
by passing and enacting a joint
resolution into law (50 U.S.C. §1622(a)
and (d)).
Additional Authorities
The President may invoke one or
42 U.S.C. §5192 specifies the federal
more standby authorities in the initial
emergency assistance that may be
declaration or in a subsequent
provided. Designated areas and forms
presidential directive, such as an
of assistance are published in the
executive order (50 U.S.C. §1621(b)).
Federal Register (44 C.F.R. §206.40).
Reporting Requirements
The President shall transmit promptly
The President must notify Congress if
significant presidential orders, rules,
the assistance provided for an
and regulations to Congress; and shall
emergency declaration exceeds $5
transmit semi-annual reports to
mil ion (42 U.S.C. §5193).
Congress on the total expenditures
incurred by the U.S. government
during the preceding six months after
declaring a national emergency. No
later than 90 days after termination of
an emergency, the President shall
transmit a final report on all such
expenditures (50 U.S.C. §1641).
Funding
No dedicated funding.
Disaster Relief Fund (DRF)—“Base
Disaster Relief” and supplemental
appropriations.
Source: CRS.

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Author Information

L. Elaine Halchin
Elizabeth M. Webster
Specialist in American National Government
Analyst in Emergency Management and Disaster

Recovery

Erica A. Lee

Analyst in Emergency Management and Disaster
Recovery

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