Sara Colangelo (Georgetown University Law Center) has posted Reimagining Emergency Powers for Environmental Protection (112 Virginia Law Review ___ (forthcoming Nov. 2026)) on SSRN. Here is the abstract:
Modern U.S. environmental law is saturated with emergencies. In an environmental context, “emergency powers” typically conjure thoughts of exemptions from protection: suspension of environmental provisions following declarations of an energy or national security emergency, enforcement waivers during the pandemic or extreme weather, and more. This Article tells a different story. It excavates and explains what I term “affirmative emergency powers”: statutory provisions in federal and state environmental laws that authorize officials to issue orders to prevent or redress imminent and substantial endangerment to health or the environment. This Article flips the script on emergency powers from tools that circumvent environmental protections to strategies for redressing sudden disasters and slow-moving crises. Yet despite their potential to mitigate urgent harms, affirmative emergency powers are rarely used and thinly theorized. This Article fills a scholarly and practical gap with three interventions. First, it offers the most comprehensive account to date of statutory authorizations for affirmative emergency powers in the most commonly enforced federal environmental laws and parallel state statutes, including many provisions not yet explored in legal scholarship. It maps who may act, what conditions trigger emergency authority, and the range of available remedial measures. Second, this Article establishes why affirmative emergency powers are especially valuable now. It demonstrates their potential to foster protection from modern threats like data center pollution, climate-driven hazards, dire environmental injustices, and “forever chemicals”—while avoiding burgeoning doctrinal barriers in a constrained administrative landscape. Third, this Article develops a prescriptive framework to guide more frequent initiation of these actions while supporting the self-determination values inherent in environmental justice and promoting democratic norms of consistency and transparency. These interventions respond to the current time of profound destabilization in environmental law. By advancing a fuller account of affirmative emergency powers, this Article contributes to the broader project of reimagining environmental governance that this moment demands. It reveals that old tools, rooted in clear authorities, can become creative strategies to meet a new administrative law world increasingly hostile to environmental protection.
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