The Commander in Chief's Authority to Combat Climate Change

Mark P. Nevitt

Abstract

Climate change is the world’s greatest environmental threat. It also is increasingly understood as a threat to domestic and international peace and security. In recognition of this threat, the President has taken the initiative to prepare for climate change’s impact – in some cases drawing sharp objections from Congress. While both the President and Congress have constitutional authorities to address the national security threat posed by climate change, the precise contours of their overlapping powers are not clear. As Commander in Chief, the President has the constitutional authority to repel sudden attacks and take care that the laws are faithfully executed. Congress has the constitutional power to provide for the common defense, declare war, and fund the military. Yet modern realities have given such constitutional powers different meanings: Congress has not declared war in over 70 years, and the President commands a vast standing Army and worldwide military.

In addressing the President’s authority to combat climate change, this Article first outlines the myriad national security issues posed by a changing climate, addressing the President’s and Congress’s powers to plan, study, and invest in climate-resilient infrastructure at military installations vulnerable to sea-level rise. Second, this Article asserts that climate change will stress and test persistent separation of powers concerns at home and abroad. Specifically, the President has less authority to protect military infrastructure domestically in the face of congressional intransigence, but has comparably greater authority as Commander in Chief to respond to climate-induced events abroad. Third, this Article asserts that the threat of climate change will increasingly challenge existing lawful use-of-force models as the military is increasingly called upon to respond to climate-induced humanitarian crises. Lastly, as the world looks with a hopeful eye to an international climate change accord in Paris in 2015, this Article concludes by offering recommendations for both the President and Congress to address the immediate national security implications of a changing climate.