A Military Response to a Warming World: Federalism, Militias, and Catastrophic Disasters

By Olson, Samantha | Duke Environmental Law & Policy Forum, Spring 2019 | Go to article overview

A Military Response to a Warming World: Federalism, Militias, and Catastrophic Disasters


Olson, Samantha, Duke Environmental Law & Policy Forum


INTRODUCTION

Climate change is a threat to national security, a threat that the United States Department of Defense has explicitly recognized. In addition to exacerbating conflicts overseas, climate change threatens American lives through violent storms, wildfires, floods, droughts, and other natural disasters. The United States Armed Forces and the National Guard are called upon to both defend American interests abroad and to protect Americans from disaster at home. Some states also call on their State Defense Forces--military forces controlled and funded by individual states--to respond to natural disasters. While Federal and state military forces both play a significant role in disaster response, Federal military forces and federalized National Guard are prohibited from functioning as law enforcement in these scenarios under the Posse Comitatus Act (PCA). State Defense Forces and state-controlled National Guard are not subject to the PCA.

This restriction generally does not impede the function of these military forces in disaster response, and Presidential invocation of the Insurrection Act may even override this restriction in extreme situations. However, federalism concerns and questions regarding the appropriate use of the Insurrection Act likely slowed the federal military response to Hurricane Katrina, adding further confusion to an already chaotic situation. As a result of ongoing climate change and warming oceans, hurricanes are likely increasing in severity and threatening greater swaths of the coast. These changes could potentially result in more catastrophic natural disasters similar to Hurricane Katrina.

This note draws on earlier scholarship concerning the Insurrection Act and federalism in the wake of Hurricane Katrina and incorporates new information regarding the impacts of climate change on natural disasters in the United States. In light of intensifying hurricanes, flooding, and other extreme weather events, this note argues for clarifying when and how federal military forces and federalized National Guard may be used to respond to natural disasters. This note argues for an amended Insurrection Act that provides the President greater flexibility to respond quickly to catastrophic natural disasters and clarifies when it can be invoked. This note also argues for the expansion of state capabilities for disaster response through the use of State Defense Forces as a way for states to better prepare for increasingly severe weather events and avoid the need for Federal intervention through the Insurrection Act.

Part I of this note will discuss the threat of climate change and the Department of Defense's response. Parts II and III of this note will address the statutory background of disaster response and the use of the military domestically. Part IV will cover the relevant military forces responsible for disaster response. Part V will examine two hurricane scenarios and how they offer insight into effective preparedness and response to increasingly severe weather events. Finally, Part VI will offer potential statutory and policy changes to better address the growing threat of natural disasters.

I. CLIMATE CHANGE AS A NATIONAL SECURITY THREAT

Climate change poses a significant threat to the United States by exacerbating the impact of extreme weather events. (2) Because of these domestic impacts and climate change's effects on stability across the globe, the United States Department of Defense has explicitly recognized it as a threat to national security since 2010. (3) The United Nations Intergovernmental Panel on Climate Change (IPCC) has stated that "[w]arming of the climate system is unequivocal, and since the 1950s, many of the observed changes are unprecedented over decades to millennia. The atmosphere and ocean have warmed, the amounts of snow and ice have diminished, and sea level has risen." (4) The 2014 report also concluded with "very high confidence" that "[i]n urban areas, climate change is projected to increase risks . …

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