The Military Advantage of a Climate Emergency Declaration

After a summer of extreme heat, deadly wildfires, flash floods, and other foreboding harbingers of a warming planet, President Biden is once again facing pressure to (officially) declare a climate emergency. Activists have pressed him to unlock emergency powers to reinstate a ban on crude oil exports and suspend offshore drilling leases, among other measures.

But there’s another, less remarked emergency lever Biden could pull that may prove even more consequential for our clean energy transition: empowering the military to help expedite the construction of electrical grid infrastructure we need to rapidly decarbonize.

The grid is the foundation of our strategy to take on climate change. The plan is to “electrify everything” — from cars, to homes, to factories — and to run everything on electricity generated from clean energy sources like wind and solar instead of fossil fuels. But that means we’ll need to upgrade the grid to meet increased demand for electricity, and build more transmission lines to carry clean energy from the windiest and sunniest parts of the country to major population centers.

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We’re in trouble on both fronts. Our antiquated grid has too little capacity to accommodate all of the wind and solar energy facilities we need. That has left many proposed renewable projects in a lurch waiting years to come online, while those that can connect contend with “congestion” from an overloaded system. Plus, a gauntlet of permits and multistate regulatory approvals means that building new large transmission lines can take a decade or more. A new transmission line to carry primarily renewable energy from New Mexico to California and Arizona just got the okay to start building from the Bureau of Land Management this spring, seventeen years after it was first proposed.

We need to build out the grid — and do so quickly — if we have any hope of meeting our climate goals. The 2021 Bipartisan Infrastructure Law invested billions to modernize the grid, but Congress has done little to address the regulatory roadblocks that make building so arduous. Meanwhile, the Biden administration is pursuing regulatory action to help.

However, a surprising source of emergency power could bolster the administration’s tools to ready the electrical grid for the new green energy era. A 1982 law called the Military Construction Codification Act states that when the president declares a national emergency “that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects … not otherwise authorized by law that are necessary to support such use of the armed forces.”

This authority could be used to improve and expand the electrical grid, according to a law review article by Professor (and former Navy commander) Mark Nevitt at Emory University School of Law. Climate-related natural disasters have increasingly required the use of the military for rescue and relief operations: in 2022 alone, half of all National Guard members were involved in lifesaving responses in the wake of wildfires, storms, and floods. And extreme weather and grid instability are a threat to military operations: military bases don’t have their own power plants, and draw energy from the grid like everyone else. Bases have gone dark and been damaged by floods and wildfires in recent years, and many have been running drills to prepare for extended power outages from climate disasters. A stronger, climate-resilient grid is necessary for a military summoned to respond to the ravages of climate change.

This gives the administration “credible but untested authority,” Nevitt told me, to invoke a military need to enhance our electrical grid under a climate emergency. That authority could be used, for example, to upgrade sections of the grid directly adjacent to the country’s 450 domestic military installations.

Because each state has at least one military installation, the Biden administration would have ample flexibility in picking strategic locations to make grid upgrades. While building far-flung power lines with little connection to a military site may stretch the bounds of the law, the interconnected nature of the grid should give the administration some leeway — for instance, to help build a transmission line that feeds into a military-adjacent portion of the grid to provide that base with more secure and abundant access to power. By way of example, the Continental Connector — a proposed 500-mile transmission line that aims to unite two grid systems by linking Kansas with New Mexico by the 2030s — could help shore up energy reliability for nearby military sites like Kirtland Air Force Base, and thereby could warrant emergency military construction assistance.

While the primary purpose would be to improve grid reliability for the military, those upgrades would of course also benefit the surrounding communities. That in turn would help strengthen our overall capacity for clean energy deployment.

This emergency construction authority was most notoriously invoked by President Trump in an attempt to build his border wall. In 2019, Trump declared a national emergency on the southern border, and instructed the Defense Department to use emergency military construction authority to begin building several sections of a border wall. This order was ultimately rejected in court on the grounds that the border wall — which was to be located hundreds of miles away from the closest military base — was not necessary to support the use of the armed forces, and was not truly a military-related project.

It’s possible that Biden’s green grid may too run into a buzzsaw in the federal courts. But building energy infrastructure that will be used by the military seems much more tethered to the spirit of the law than constructing a distant anti-immigrant barricade. Moreover, military prerogatives to address a legitimate need for a reliable energy supply ought to get deference from the courts. Biden could also opt for a narrower emergency declaration less sweeping than climate change but more likely to survive in the courts, like grid resilience — an emergency that is particularly salient in the wake of the devastating Maui fires.

Biden also could turbocharge emergency grid construction by bypassing normal regulatory requirements. The Military Construction Codification Act empowers the Defense Department to act “without regard to any other provision of law,” giving it authority to overcome other impediments in federal, state, and local law (much like similar preemptive language in the Defense Production Act that I’ve written about). After Trump’s border wall order, the Defense Department issued a memorandum initiating construction “without regard to any other provision of law that could impede such expeditious construction in response to the national emergency,” including “the National Environmental Policy Act, the Endangered Species Act, ... [and] the Clean Water Act.” Taking the same tack could expedite grid construction, but Biden would face major pressure from political allies to forgo this power. Yet at minimum, an emergency declaration would streamline the NEPA process and trigger waivers and exemptions under other environmental laws.

We can’t electrify our way to net-zero emissions without a grid up to the task. So building that grid is one of the most pressing tasks we face. If Biden does take the step of formally declaring a climate emergency, putting the might of the U.S. military toward that critical mission would be an awfully good response.

Read more about the electric grid:

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