Biden’s Power Over Energy Will ‘bold’ action against climate change include abuse of his national-security authority? By Tristan Abbey
The White House’s developing response to a global energy crisis raises an unsettling question: If the Biden administration openly discusses restricting energy exports to combat rising consumer fuel prices, what power might it assert to save a planet it believes to be in crisis?
Because Congress and the courts have ceded power to the executive branch over the past several decades, the president, if he so chose, could co-opt powerful national security tools to reduce U.S. carbon emissions. As midterm elections approach, progressives will pressure President Biden to do exactly that.
Remember that one of Mr. Biden’s first executive orders declared that climate change is “central” to national security. It promised to “combat the climate crisis with bold, progressive action,” which could mean almost anything. The administration has begun following through on this rhetoric. In September it announced the creation of a task force “to detect, deter, and disrupt” hydrofluorocarbons, a category of potent greenhouse gases. That alliterative phrase typically is reserved for countering weapons of mass destruction, rogue states and terrorists.
If climate change is “an existential threat to our lives,” as Mr. Biden declared in the wake of Hurricane Ida, then what wouldn’t the administration be prepared to do to address it? Take natural gas. Climate activists used to call it a “bridge fuel” but now decry it as a dangerous pollutant. The Energy Department may rescind operable export authorizations under the Natural Gas Act, though it has never done so. Both the Obama and Trump administrations assured nervous allies that they couldn’t imagine a scenario where revocations would ever be necessary. Climate warriors believe global warming constitutes such a scenario.
The same law allows the department to attach “terms and conditions” to its export approvals. A future in which every natural-gas liquefaction terminal is required to build facilities to capture, store and use carbon dioxide or to install vast amounts of renewable energy capacity for local use is entirely plausible.
Strangling crude-oil exports would only require some paperwork by the Biden administration. An obscure “safety valve” clause allows the president to declare a national emergency and impose licensing requirements on shipments. For Mr. Biden to declare a national emergency wouldn’t be too heavy a lift. Annual emergency declarations and their routine extension in general have become unremarkable events.
Refined products such as gasoline and natural-gas liquids such as propane are the most liberated hydrocarbon molecules in the U.S. No export approvals are required. This conspicuously privileged position is already under the activist microscope. Alleged pump-price collusion by U.S. gasoline retailers, already under investigation by the Federal Trade Commission, provides a ready justification for restricting consumer fuel exports.
An adventurous White House could go even further to restrict the use of fossil fuels. The Committee on Foreign Investment in the U.S. is a federal body authorized to intervene in national-security-related transactions involving foreign investors. Its power allows it to “negotiate, enter into or impose, and enforce any agreement or condition with any party” to these transactions. If climate change is national security, where is the limit to the committee’s power? Foreign investments in domestic energy projects could fall under review depending on the technology or infrastructure involved, and “any agreement or condition” is as broad as it gets. An investing country could be compelled to take climate action within its own borders—to shift away from coal, to tighten up Paris obligations, and literally anything else—lest the transaction be blocked.
More troubling, American companies could be required to mitigate their climate risk in untold ways. Prepare for a world in which cloud computing and blockchain companies are required to install wind turbines and solar panels, and in which their foreign partners are required to divest from African coal plants and Australian coal mines.
There is one final rung on this policy ladder. The International Emergency Economic Powers Act authorizes the president to “investigate, regulate, or prohibit” virtually any jurisdictional transaction for national-security purposes after declaring a national emergency. In practice, this act encapsulates all transactions with the U.S. financial system. These powers have been employed to great effect against rogue states and terrorists. If climate change is truly an existential threat to humanity, what could be more threatening than a country that refuses to curb emissions? Make way for climate-based sanctions.
Intense litigation would ensue over these “novel uses” of existing authority. Court-imposed curbs on executive power may result, but that will take years. The U.S. government has the power to destroy the financial viability of politically incorrect forms of energy by raising costs, deepening uncertainty, and discouraging investment, regardless of judicial outcomes.
Congress should tame the White House and regulatory agencies by legislating precise restrictions on these emergency powers. What the legislature gives, the legislature can take away by making a constrained view of regulatory authority a condition of Senate confirmation. Lawmakers should also use budget hearings and the appropriations process to warn departments and agencies not to exceed their remit, and sign pre-emptive joint letters signaling congressional intent to punish regulatory overreach in the energy sector. Governors must prepare for federal officials to jeopardize energy projects vital to their states’ economies, which could provide opportunities to mobilize voters, collaborate with their states’ congressional delegations, and pursue legal action to protect the livelihoods of their citizens.
Mr. Abbey was Republican chief economist at the U.S. Senate Committee on Energy and Natural Resources (2019-20) and director for strategic planning at the National Security Council (2017-19).
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