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44 Harv. Envtl. L. Rev. 321 (2020)
On Environmental Law, Climate Change, & National Security Law

handle is hein.journals/helr44 and id is 325 raw text is: ON ENVIRONMENTAL LAW, CLIMATE CHANGE, & NATIONAL SECURITY LAW Mark Patrick Nevitt* ABSTRACT 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 Na- tions 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 cli- mate-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 oflaw, environmental and climate change law, largely values the protec- tion and preservation of the human environment via a cooperative federalism model of envi- ronmental 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 in- creasingly aligned as we look to preserve our common future from all threats, properly defined. Ifclimate change is, indeed, correctly conceptualized as a security issue, how do these two bodies of law interact? Should afuture President be afforded national security deference in addressing the threats posed by climate change? Is climate change potentially a national emergency? And ifso, what actions can (or should) be taken? This Article first describes and analyzes climate change as a national security issue, pro- viding 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 US. law. Finally, I use one specryic 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. Mark P. Nevitt is an Associate Professor of Law at Syracuse University College of Law, Affiliated Faculty Institute for Security Policy and Law. Prior to his academic appointment at Syracuse, he served as a Professor of Leadership & Law at the U.S. Naval Academy and served as the Sharswood Fellow at University of Pennsylvania Law School. Prior to his ca- reer in academia, he served for twenty years in the Navy as both a tactical jet aviator and attorney in national security assignments throughout the world. He thanks Professors Bill Banks, William Buzbee, Peter Byrne, Cary Coglianese, Vanessa Casado-Perez, Sara Coalengelo, Paul Diller, Holly Doremus, David Driesen, Ben Eidelson, Bridget Fahey, Victor Flatt, Jean Galbraith, Michael Gerrard, Rob Glicksman, Sara Gosman, Hajin Kim, Jon Klick, Sarah Light, David Luban, Felix Mormann, Tim Mulvaney, Arden Rowell, Rob- ert V. Percival, Jimmy May, Katherine Weingartner, Robin West, David Wishnick, and faculty workshops at Penn Law, Georgetown Law, Syracuse Law, Texas A & M Law School, as well as the Sabin Colloquium on Innovative Scholarship at Columbia Law School. All mistakes are his own.

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