Immediately following his inauguration, President Trump declared a national energy emergency in the United States. While the contours and implications of this declaration remain uncertain, the order’s stated purpose is to advance the President’s domestic energy policy agenda by promoting extraction and use of fossil fuels and other favored forms of power generation. One likely effect of the declaration is to further shift control over U.S. energy policy from the states to the federal government. Such reallocations of authority during periods of crisis (real or imagined) have been an enduring feature of energy policy on both sides of the Atlantic.
This Article examines the impact of crises on the centralization of authority over energy policy in the United States and the European Union over the past half–century. Using case studies—including the oil price shocks of the 1970s, blackouts and grid failures, and Russia’s invasion of Ukraine—it examines the mechanisms by which these shifts in power have taken place. In the European Union, centralization has occurred primarily through the invocation of executive emergency authorities. In the United States, by contrast, the primary mechanism of centralization has been legislation enacted in the immediate wake of crises. However, President Trump’s recent declaration and the serious consideration President Biden gave to declaring a climate emergency suggest that the use of executive emergency authority may be on the rise in the United States as well.
Existing literature highlights the dangers of horizontal consolidation of authority in the executive branch of government during emergencies, as well as the potential negative impacts of emergency lawmaking on civil liberties. By contrast, we highlight the potential for emergency governance to produce vertical shifts of authority from the periphery to the center in federal or quasi–federal systems. Vertical consolidation is not necessarily a problem. Crises can highlight failures of existing governance structures and create momentum for needed legal and policy reforms. However, crises also create the opportunity and incentive for self–serving or unreflective consolidation of authority by central government officials. We therefore suggest modest reforms to existing energy emergency laws to ensure they are not overbroad and that there is a chance to assess, either ex ante or ex post, their impact on vertical distributions of power.