Professor Mark Nevitt: On Environmental Law, Climate Change, & National Security Law
"On Environmental Law, Climate Change, & National Security Law." Harvard Environmental Law Review 44:2 (Fall 2020)
This article offers a new way to think about climate change. Two new climate change assessments—the 2018 Fourth National Climate Assessment (“NCA”) and the United Nations Intergovernmental Panel on Climate Change’s Special Report on Climate Change—prominently highlight climate change’s multifaceted national security risks. Indeed, not only is climate change an environmental problem, it also accelerates existing national security threats, acting as both a “threat accelerant” and “catalyst for conflict.”
Further, climate change increases the intensity and frequency of extreme weather events while threatening nations’ territorial integrity and sovereignty through rising sea levels. It causes both internal displacement within nations and climate change refugees across national borders. Addressing this new climate–security nexus brings together two historically distinct areas of law: environmental law and national security law.
As we properly conceptualize climate change as a security threat, environmental law and national security law, once considered separate and often in conflict, engage with each other in new and complex ways.
The first body of law, environmental and climate change law, largely values the protection and preservation of the human environment via a cooperative federalism model of environmental laws and policies.
The second body of law, national security law, largely suspends environmental protections ex ante via myriad national security exemptions within existing environmental statutes. But in the climate–security context, what was once in conflict is increasingly aligned as we look to preserve our common future from all threats, properly defined.
If climate change is, indeed, correctly conceptualized as a security issue, how do these two bodies of law interact? Should a future President be afforded national security deference in addressing the threats posed by climate change? Is climate change potentially a national emergency? And if so, what actions can (or should) be taken?
This article first describes and analyzes climate change as a national security issue, providing an overview of our understanding of climate change, climate science, and climate change’s multifaceted security effects. Second, I analyze where environmental, climate change, and national security law increasingly intersect to include a discussion of relevant U.S. law.
Finally, I use one specific example—whether climate change is a national emergency—as a vehicle to highlight how these two areas of law interact in new and surprising ways.