Climate Security Insights from the COVID-19 Response

The climate change crisis and COVID-19 crisis are both complex collective action problems. Neither the coronavirus nor greenhouse gas (GHG) emissions respect political borders. Both impose an opportunity cost that penalizes inaction. They are also increasingly understood as nontraditional, novel security threats. Indeed, COVID-19’s human cost is staggering, with American lives lost vastly exceeding those lost in recent armed conflicts. And climate change is both a threat accelerant and a catalyst for conflict—a characterization reinforced in several climate-security reports. To counter COVID-19, the President embraced martial language, stating that he will employ a “wartime footing” to “defeat the virus.” Perhaps not surprisingly, the military has played a critical role in the government’s pandemic response. The National Guard has staffed hospitals, vaccination sites, and schools. As our pandemic response continues, what insights are emerging that will inform our climate response? This Article identifies and analyzes several, focusing on the relationship between health security and climate security. These insights— particularly the U.S. domestic military response and how we conceptualize “security”—have normative implications for climate governance and disaster response

Is Climate Change a Threat to International Peace and Security?

The climate-security century is here. Both the United Nations Intergovernmental Panel on Climate Change (“IPCC”) and the U.S. Fourth National Climate Assessment (“NCA”) recently sounded the alarm on climate change’s “super-wicked” and destabilizing security impacts. Scientists and security professionals alike reaffirm what we are witnessing with our own eyes: The earth is warming at a rapid rate; climate change affects international peace and security in complex ways; and the window for international climate action is slamming shut

Climate Security Insights from the COVID-19 Response

The climate change crisis and COVID-19 crisis are both complex collective action problems. Neither the coronavirus nor greenhouse gas (GHG) emissions respect political borders. Both impose an opportunity cost that penalizes inaction. They are also increasingly understood as nontraditional, novel security threats. Indeed, COVID-19’s human cost is staggering, with American lives lost vastly exceeding those lost in recent armed conflicts. And climate change is both a threat accelerant and a catalyst for conflict—a characterization reinforced in several climate-security reports. To counter COVID-19, the President embraced martial language, stating that he will employ a “wartime footing” to “defeat the virus.” Perhaps not surprisingly, the military has played a critical role in the government’s pandemic response. The National Guard has staffed hospitals, vaccination sites, and schools. As our pandemic response continues, what insights are emerging that will inform our climate response? This Article identifies and analyzes several, focusing on the relationship between health security and climate security. These insights— particularly the U.S. domestic military response and how we conceptualize “security”—have normative implications for climate governance and disaster response

Military Justice: A Very Short Introduction (Book Review)

This short essay reviews Professor Eugene Fidell’s recently published book, “Military Justice A Very Short Introduction” (Oxford Press). This book is a welcome addition to military law and military justice literature more generally. Eugene Fidell, a professor at Yale Law School, brings a tremendous breadth of experience as both a scholar and military justice practitioner. He also possesses a keen observational and critical eye to the subject of military justice practiced here and abroad. The book review first provides an overview of Professor Fidell’s book, its organizational set-up, and where it sits in the broader context of military justice literature. Second, it highlights the aspects of the book that should be of particular interest to readers – such as members of the media – that require a familiarity with the court-martial and military justice system. The military criminal justice system can appear quite opaque to outside observers. Readers seeking to understand military justice jargon and its somewhat unusual design will be well served by this book. I commend it to anyone with an interest in military justice, particularly those seeking to “get up to speed” quickly on the critical differences between the civilian and military justice system

The National Historic Preservation Act: Preserving History, Impacting Foreign Relations?

Japanese Prime Minister Shinzo Abe, the highest political leader in Japan, shook his head in disbelief. His tenure as Prime Minister had been tense, partly due to the ongoing question of a replacement airfield for the U.S. Marines in Futenma. A predecessor, Yukio Hatoyama, also suffered political fallout stemming from his reversal of a public promise to find a replacement location for the U.S. Marine Corps Air Station. Prior to the Hatoyama administration, the Japanese government had selected a new location for the Marine Air Station, a remote area far removed from the busy city of Okinawa in Henoko. Moving to Henoko was intended to be a “win-win” for both Japan and the United States as it would alleviate the environmental concerns and urban encroachment that plagued the Futenma Air Station’s operations while complying with United States’ military operational requirements. Yet Japan will not be moving the Marines from Futenma to Henoko anytime soon. The National Historic Preservation Act (NHPA), enacted in 1966 with the goal of preserving the “cultural foundations of the [n]ation . . . in order to give a sense of orientation to the American people,” effectively stopped Japan’s proposed movement of the Marines to Henoko. Many Japanese citizens and American environmentalists were incensed as the new Henoko location included the habitat for the dugong, a species of marine mammal listed as a protected “natural monument” on the Japanese Register of Cultural Properties. Lacking a judicial remedy in Japan, they turned to U.S. law with success—the NHPA when used in conjunction with the Administrative Procedures Act (APA) authorizes a lawsuit against federal agencies to include the Department of Defense (DoD) in a U.S. federal court. Following several years of litigation, the court ruled in favor of the plaintiffs, requiring the DoD to account for the effect of the move on the dugong and effectively thwarting Japan’s decision to move the Marines to the new location at Henoko. In Dugong v. Rumsfeld (Dugong I) in 2005 and Dugong v. Gates (Dugong II) in 2008, a U.S. district court interpreted the NHPA to protect a wild animal outside the United States in another sovereign territory, calling into question Japan’s decision to move a U.S. military installation from one part of Japan to another. In the Dugong rulings, the court applied the litigants’ innovative use of the NHPA’s extraterritorial provision to protect foreign cultural and historical properties as defined by the foreign sovereign’s law. This application went beyond the traditional scope of the NHPA. While the precedent is limited to a single federal district, it downplays broader prudential foreign policy concerns that have traditionally constrained the judiciary in such areas, most recently reaffirmed in Kiobel v. Royal Dutch Petroleum Co. by the U.S. Supreme Court. The NHPA now no longer functions solely as a domestic preservation statute of limited scope and jurisdiction. In light of the Dugong rulings, the NHPA impacts broader foreign relations and national security and must be addressed. Two novel issues are discussed in this Article

Domestic Military Operations and the Coronavirus Pandemic

In response to the novel coronavirus crisis, we are witnessing one of the largest domestic military operations in American history. This article proceeds in three parts. Part I considers the emergency authorities invoked to address the coronavirus, including the Public Health Service Act (PHSA), National Emergencies Act (NEA), and Stafford Act. Part II deals with the laws, regulations, and policies governing the military’s role as a law enforcer— including restrictions on the military’s role to quell civilian disturbances. I also briefly discuss martial law, a rarely invoked but powerful authority held at the federal, state, and local levels. Part III deals with the scope of the military as emergency aid and relief provider. Unlike the military’s role in quelling domestic disturbances, there are far fewer restrictions when it provides relief following a natural disaster or health crisis

Is Climate Change a National Emergency?

The next decade is critical for climate action. As sea levels rise, wildfires rage, and disasters increase in frequency and scale, it is clear that the U.S. must leverage an expanding menu of legal, policy, and technological tools to address climate change’s destabilizing effects. At present, we remain off-track to reduce our collective greenhouse gas (“GHG”) emissions and avoid irreversible, catastrophic harm. The emissions gap — the difference between the world’s current emissions trajectory and what we must emit to avoid climate change’s most severe consequences — continues to grow. Although President Biden and the 117th congressional leadership have pledged to combat the climate crisis, the Democrats’ narrow Senate majority will make passing comprehensive climate legislation difficult. In the face of likely legislative paralysis, a diverse group of activists, policymakers, and lawmakers have called on the president to declare climate change a national emergency. Is climate change, and its multifaceted impacts, an emergency that warrants using supplemental legal authorities? If so, what federal emergency authorities are available? And what are the normative stakes to democratic governance if a president declares a climate emergency? This Article addresses these questions and others, arguing that climate change is unlike any problem facing the nation and the world. As climate change destabilizes the physical environment, it will force us to look with fresh eyes at all the legal tools available to address climate mitigation, climate adaptation, and how we respond to climate impacts. As such, presidents must consider using all legal authorities, including the National Emergencies Act (“NEA”), to address climate change