Presidential candidate Donald Trump promised to "cancel" the Paris Agreement on climate change during the campaign last year. Last week, during a rally to celebrate his first 100 days in office at Harrisburg, Pennsylvania, Trump declared that a "big decision" would be forthcoming in the next two weeks on the Paris Agreement. A big fight has apparently broken out among Trump administration denizens over the question of leaving or staying in the accord. The Clexiters include strategic nationalist Steve Bannon and EPA administrator Scott Pruitt and the stayers are First Daughter Ivanka Trump and Secretary of State of Rex Tillerson.
During his confirmation hearing, Tillerson told lawmakers, "It's important that the U.S. maintains its seat at the table about how to address the threat of climate change, which does require a global response. No one country is going to solve this on its own."
The opponents and proponents are focusing on a narrow and a broader issue. The narrow issue involves determining whether or not the agreement allows signatories to lower their nationally determined contributions, that is, the commitments that each country has made under the agreement with respect to their future emissions of greenhouse gases. Under the Paris Agreement, the Obama administration committed to reducing U.S. greenhouse gas emissions by 26-28 percent below their 2005 levels in 2025. At issue is the Article 4.11, which states that a nation "may at any time adjust its existing nationally determined contribution with a view to enhancing its level of ambition." Ambition means doing more to mitigate climate change. Does this mean that a country's commitments can only be ratcheted upwards and never reduced?
In the New York Times, legal analyst Christopher Horner of the free-market think tank the Competitive Enterprise Institute, asserted, "Despite the mad rush to insist that plain language means either the opposite of what it says, or else nothing at all, under any canon of construction, Article 4 does not permit revisions downward." It's a ratchet. Contrariwise, Todd Stern who was the Obama administration's chief climate negotiator claimed that the flexibility to reduce targets was written into the agreement by careful design. "It wasn't like, 'Boy, nobody thought of that,'" he said to the Times. The plain language of the agreement does imply an upward ratchet, but since there are no explicit enforcement mechanisms in the accord, nothing would happen to a country that formally lowered its ambition, or even just ignored its nationanlly determined contribution commitments.
The Bottom-Up Structure of the Paris Agreement
The Paris Agreement might be thought of as a non-zero-sum bottom-up exercise. Countries are not being told what to do, but each one gets to propose for itself what it plans to do about man-made global warming. In addition, thousands of states, provinces, regions, cities, and businesses have piled on to make voluntary pledges to reduce their greenhouse gas emissions. (This is not to say their electorates agree with the decisions being made by their governors and mayors.)
This pledging process avoids the divisive zero-sum gaming that characterized previous climate negotiations. Both the 1997 Kyoto Protocol and the successor agreement that was supposed to be approved at the Copenhagen climate conference in 2009 were conceived as top-down legally binding regulatory systems. Both failed spectacularly.
In any case, would nothing happen really happen if Trump were to submit lower U.S. greenhouse gas reduction commitments under the agreement? Opponents worry that the Paris Agreement would be interpreted as having the force of law by U.S. courts. This brings us the broader issue:
Is the Paris Agreement a treaty?
The United States Senate approved the United Nations Framework Convention on Climate Change (UNFCCC) by a rare division vote with two-thirds concurring on October 7, 1993 and President Bill Clinton ratified the treaty by signing it on October 13, 1993. By agreeing to that treaty the United States committed to the "stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system."
The State Department's Foreign Affairs Manual explains that presidents may conclude international executive agreements in three cases: pursuant to a treaty already authorized by the Senate; on the basis of existing legislation; and pursuant to his authority as Chief Executive when such an agreement is not inconsistent with legislation enacted by the Congress. During the climate negotiations leading up to the adoption of the Paris agreement by the Conference of the Parties to the UNFCCC, Obama administration attempted to shape the accord as merely an extension to that earlier treaty that would therefore not require the Senate's advice and consent for implementation.
Prior to the Paris Agreement, the Obama administration had made pledges to cut U.S. greenhouse gas emissions pursuant to the Copenhagen Accord (2009) and Cancun Agreements (2010). A 2010 Congressional Research Service (CRS) legal memorandum made it clear that such climate commitments were voluntary and could "not used as an independent basis for agency regulations imposing emissions restrictions on industry." However, the CRS analysis also observes that nothing prevents the president from attempting to fulfill the voluntary pledges by seeking domestic climate change legislation or promulgating regulations pursuant to existing statutes such as the Clean Air Act and the Energy Independence and Security Act. In fact, this is exactly what President Obama did by increasing corporate average fuel economy standards and seeking to reduce by 2030 electric power plant emissions of carbon dioxide by 30 percent under the EPA's Clean Power Plan.
Under the U.S. Constitution, the President has the power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur. So is the Paris Agreement a treaty or merely an executive agreement extending the previously ratified UNFCCC? The State Department's Foreign Affairs Manual offers guidance for determining when an international agreement is a treaty or not. Relevant considerations include (1) the extent to which the agreement involves commitments or risks affecting the nation as a whole, (2) whether the agreement is intended to affect State laws, and (3) the preference of the Congress as to a particular type of agreement.
Mandated shifts in energy production do pose risks to the nation as a whole and do affect state laws. In addition, Congress has expressed a preference with regard to climate agreements.
As it happens, the CRS memorandum noted that a 1992 Senate Committee on Foreign Relations report dealing with the ratification of the UNFCCC flatly stated that a "decision by the Conference of the Parties to adopt targets and timetables would have to be submitted to the Senate for its advice and consent before the United States could deposit its instruments of ratification for such an agreement." The 1992 Senate report also explicitly added that any presidential attempt "to reinterpret the Convention to apply legally binding targets and timetables for reducing emissions of greenhouse gases to the United States" would also require the Senate's prior advice and consent.
The nationally determined contributions submitted by the Obama administration are clearly "targets and timetables" but compliance is voluntary. Does that make a difference?
Lucas Bergkamp, as I reported elsewhere, the head of European Regulatory Practice at the international law firm Hunton and Williams, sees the Paris Agreement as a "Trojan Horse" that poses a grave threat to constitutional government. Along with his colleague Scott Stone, Bergkamp argues that the gap between the agreement's ambitious goals and the admittedly insufficient national climate plans leaves space for UNFCCC bureaucrats, climate activists, and unaccountable judges to engage in policy laundering. Policy laundering occurs when activists (and their allied bureaucrats and politicians) use treaties or other international agreements to justify imposing rules, regulations, taxes, and mandates that lack domestic political support. The rationale amounts to: "The treaty (or agreement) made me do it."
For example, climate activists masquerading as the representatives of "civil society" might assert that international obligations under the Paris Agreement require courts to step in and order governments to perform their legal duty to protect citizens from climate change. In fact, last year a Dutch court ordered the government of the Netherlands to do exactly that by reducing the country's greenhouse emissions by 25 percent below 1990 levels by 2020. Unless governments are careful, Bergkamp warns that the Paris Agreement could morph into a vast bureaucratic monstrosity beholden only to climate activists and crony capitalists.
CEI's Chris Horner who has just co-authored a new analysis, The Legal and Economic Case Against the Paris Climate Treaty, asserts:
"The Paris treaty is "politically binding," like prior climate treaties, but carries huge potential legal consequences, and the State Department is misleading the White House by ignoring these risks. If President Trump stays in this treaty and follows through in his energy agenda, every climate-activist state attorney general, environmental group, and the entire climate industry will surely litigate on the basis of the Paris treaty."
I have noted before that as someone who's been reporting on United Nations climate negotiations since the 1992 Earth Summit in Rio de Janeiro where the UNFCCC was adopted, I've seen both the climate activist movement and the U.N. and domestic climate bureaucracies massively expand and gain influence. Global warming is a problem, but I fear that Bergkamp has a point.
One cautionary note: If most of the rest of the world decides to pursue climate mitigation under the Paris Agreement, do not be shocked when they impose carbon tariffs on our exports.
So what to do? President Trump should submit the Paris agreement as a treaty to the Senate seeking that body's advice and consent. Climate activists and climate skeptics both may be surprised at how the American public reacts to a robust debate over the Paris Agreement. In any case, by remaining in the already ratified UNFCCC, the U.S. maintains its seat at the table at international climate negotiations.