The State of Climate Exception

In the two decades since the enactment of the Patriot Act, the concept of the “state of exception” has become common parlance in the humanities and social sciences. We know it as the temporary suspension of constitutional rights and civic safeguards in the name of an emergency political situation. Under normal circumstances, the story goes, we live in a society of laws, but sometimes a crisis necessitates an ad-hoc bracketing of these laws in order to preserve society itself—bending the rule of law to make sure that it doesn’t break.

Overwhelmingly, the connotation surrounding the phrase “state of exception” is negative: liberals concerned about civil liberties can condemn it alongside radicals like Agamben, who sees the ‘normal’ functioning of government as a permanent state of exception. Indeed, there is much to regret in the history of emergency constitutional suspension, most notoriously the internment of Japanese-Americans following Pearl Harbor.

Less often recognized or discussed, however, are those instances where emergency politics seem like a good idea in retrospect. While we rightfully condemn the Roosevelt administration’s racism, do we have the same attitude when it comes to other aspects of its exceptional state policy, like the wave of (temporary) industrial nationalizations in aid of the war effort? Even the Trump administration (‘a broken clock…’) enacted the Defense Production Act during the Covid-19 pandemic to mandate that ventilators continue to be produced even at a loss for the companies, something not generally accepted during normal circumstances. Would anyone—besides perhaps Agamben—deny that this was the right decision? ‘Shelter in place’ orders are also of dubious constitutional legitimacy under normal circumstances, but were they not prudent and necessary as the pandemic broke?

This raises difficult questions about the relationship between the judicial and the extrajudicial. It was this issue that preoccupied the analytically best (and morally worst) theorist of emergency politics, Carl Schmitt. A century ago, Schmitt argued that constitutions inevitably contain clauses allowing for their own suspension in times of crisis. So, bracketing or even dissolving the constitution when necessary is, strictly speaking, constitutional. To Schmitt’s mind, the fundamental question is: who decides when such a suspension is ‘necessary,’ and on what grounds? A constitution cannot do that by itself. Constitutional government, then, is not the rule of law, but ultimately the rule of the person or persons who decide when the law no longer applies.

Not an easy conclusion to stomach for those committed to liberal democracy, especially if they were brought up under conditions of relative normalcy and security. Little wonder, then, that the state of exception has been the object of critical scorn in contemporary political theory. Yet the question alluded to above still remains: is a state of exception always necessarily wrong? The constitutionalist might reply that ‘shelter in place’ orders or the Defense Production Act represent circumscribed departures from normalcy rather than a generalized state of exception. Specific and limited legal formalities being streamlined is one thing; the entire legal apparatus being suspended is something else entirely. This answer leads to another question: is a generalized state of exception always necessarily wrong? Or could we imagine a crisis so massive and so extreme that a generalized state of exception is the only adequate and justifiable response?

In the era of anthropogenic climate change, a crisis of such magnitude is more than a speculative concern. According to recent findings of the IPCC (Intergovernmental Panel on Climate Change), the Earth system will push past 1.5°C degrees of warming unless greenhouse gas emissions are drastically reduced by 2030 and eliminated entirely by 2050. Not only are we not on track to achieve this, but we are moving in the opposite direction, burning more fossil fuels year after year, and preparing to burn still more at a rate consistent with 3-5°C of warming by the end of the century.

While it is by now a commonplace to see headlines proclaiming that the climate crisis is already here, we should also bear in mind that the effects we are experiencing currently—the fires, the droughts, the floods—are the result of only 1.2°C of warming. A crisis of 1.2° and a crisis of 4° are different beasts entirely. While the UN estimates that over 20 million people have been displaced by climate destabilization already, studies indicate that the present rate of emissions will make parts of the world currently occupied by up to 3 billion people uninhabitable as soon as 2070. Alongside migration conflicts and climate wars, species extinction and ecosystem collapse will cause supply chain disruptions that make the pandemic look like a minor inconvenience. Even worse than this, climate change causes climate change: as the arctic melts, it releases yet more greenhouse gases. This and other feedback loops mean that once the warming process passes a certain threshold, it will only compound and intensify from there. It is not as though warming will reach 6°C and then stop and wait for us to adapt (however horrifying a prospect that is already). Climate change represents an existential threat to the future of the human species.

With this information in mind, rapid decarbonization seems like an easy and glaringly obvious political choice. And yet, as mentioned above, we are moving in exactly the opposite direction. It is as if a doctor were telling you to avoid a specific food at the peril of your life, and instead of cutting it out of your diet, you make a sustained effort to eat more of it. What can account for this?

Progressives and environmentalists often chalk it up to greedy fossil fuel companies and their campaigns of misinformation, and this obviously plays an oversized part in the ongoing tragic comedy. But the issue goes deeper. Transitioning to a carbon-free economy is not only a matter of curbing the influence of ExxonMobil or educating the citizenry (even if these are necessary first steps). The livelihoods of millions of people are directly or indirectly tied to burning fossil fuels. Over half of the electricity in the United States is generated by burning fossil fuels. The export economies of dozens of countries depend upon burning fossil fuels. The global currency system is bound up with burning fossil fuels, and so are the pension funds of many working people. Carbon emissions are not an aspect of our present way of life that can be picked up or put down at will. For rich and powerful countries in particular, carbon emissions are a way of life.

The IPCC recognizes this. Its 2018 summary for policymakers says that achieving the necessary emissions reductions would require “rapid, far-reaching, and unprecedented changes in all aspects of society.” Because of the interdependence of the global economy (and the nature of atmospheric conditions), such changes would have to be global: even if half of the high-emission countries of the world eliminated carbon, emissions from the other half would be enough to shatter ecological balance. Meanwhile, low-emission countries are clamoring for the kind of ‘development’ afforded by fossil fuels. Decarbonization, then, would require a globally integrated process of contraction (overall reduction in emissions) and convergence (narrowing of the emissions gap).

What are our prospects for achieving this? Given its size, per capita emissions rates, economic leverage, and military capacity, it is unlikely that rapid decarbonization at a global level could be accomplished without the support of the United States. An ecological awakening in this country seems profoundly unlikely. In the last election cycle, the ‘lesser of two evils’ candidate (the other being a patent climate denier) told his supporters that nothing would fundamentally change if he were elected—hardly in step with the IPCC’s recommendations. Voters and activists seem more concerned about their right to use a gas-powered stove (regardless of its carbon footprint) than about electing leaders committed to a habitable future. Our recent experience with masks, large gatherings, and vaccinations should indicate something about the willingness of this population to reduce plastic, eat less meat, and give up their SUVs for public transportation. In the affluent world in general, even those nominally concerned about climate change are largely unwilling to change their carbon-intensive lifestyles.

If climate mitigation is unlikely to be realized through the established channels of liberal democracy, at least with anywhere near the necessary speed and decisiveness, we are left to wonder how the unfolding crisis will be managed. And so we return to the state of exception. Can constitutional government continue to function normally even as it confronts 3 billion climate migrants, disappearing coastlines (not to mention islands), failing power grids, evaporating supply chains, and unprecedented extreme weather? The centers of power know that the status quo cannot be maintained in these conditions: the military apparatuses of the affluent countries are already preparing for a form of militarized green security. The Pentagon has a plan for climate change, even if the President doesn’t. At the end of this road lies the specter of a climate apartheid.

If we want to avoid this scenario, holding fast to liberal democratic constitutionalism is a questionable strategy. Could a rapid transition away from the fossil fuel economy be accomplished while respecting constitutional rights as typically interpreted? Does the government have the constitutional right to impound your SUV? Does it have the right to ban private jets and NASCAR races? Does it have the right to nationalize fossil fuel corporations (without compensation) and redirect their workforces? Does it have the right to seize private land for the development of wind farms? Does it have the right to halt the production of single-use plastic, except in specific cases (such as medical supplies)? Do we have the time to wait while the courts adjudicate these delicate constitutional questions?

Our choice, then, does not seem to be a choice between the liberal rule of law and a state of climate exception, but how the state of climate exception will operate. Will it merely prop up the existing order for as long as possible, acting as a climate leviathan that protects the privileged and sacrifices the poor? Will it take the form of an ethnonationalist fossil fascism to marshal popular support? Or will it be something else entirely, a state actually capable of rapidly shifting to a green economy while avoiding a climate apartheid? As opponents of this kind of state and this kind of economy are fond of saying: there is no alternative.

Because of everything said here (and more), political theorists are beginning to wonder about the compatibility of climate mitigation and the democratic form, with one well-publicized article even recommending a green ‘authoritarianism’. Resistance to this way of thinking is palpable: the 20^th century taught us bitter lessons about ‘totalitarian’ politics, the story goes, and so we should hold fast to the rule of law, individual rights, and the democratic process. But liberal democratic constitutionalism was designed for a time before it became clear that certain human behaviors—like powering an economy with fossil fuels—have the unintended consequence of destroying the environment (and us along with it). The anti-statism and anti-rationalism that characterizes so much of the ‘radical’ tradition is likewise an anachronism in the era of climate breakdown. It is time for political theory and philosophy of law to catch up with the times. Among other things, this means no longer being afraid of the state of exception in form. Because it will happen regardless of any principled objections to the contrary, we must instead focus on what content it will have.

Is Schmitt therefore vindicated? Was this unrepentant Nazi right all along? Again, it is a matter of form and content: while Schmitt would probably approve of something like fossil fascism, he would roll in his grave at the thought of anything like global eco-socialism. We cannot respond to Schmitt’s argument about the limits of constitutionalism by stubbornly insisting that constitutions have no limits. We have to ask the same questions he did—who decides on the exception and on what basis? what are constitutions meant to protect in the first place?—and offer different answers.

Larry Alan Busk

Larry Alan Busk is the author ofDemocracy in Spite of the Demos. His articles on climate change, democracy, and critical theory have appeared in Philosophy and Social Criticism, Constellations, Radical Philosophy Review, and other journals. He teaches philosophy and humanities at Florida Gulf Coast University.