J’adore No More: President Trump and the Paris Agreement

J’adore No More: President Trump and the Paris Agreement

By: Alexander Dunn, Staff Contributor

Early November 2016 will be remembered as a schizophrenic time for the battle against anthropogenic climate change. On November 4, the Paris Agreement entered into force for much of the world, including the United States.[1] Then, on November 8, Donald Trump won the U.S. Presidency.[2] Trump’s shocking electoral victory has cast doubt on U.S. participation in the Paris Agreement and expert opinions have ranged from cautiously optimistic to apocalyptic.[3] On the campaign trail, Mr. Trump was a climate change skeptic, at one point labeling it a Chinese hoax.[4] It remains to be seen whether he will chart a more magnanimous course as president. What is clear, however, is that Mr. Trump will have his choice of tools in limiting or ending U.S. involvement in the Paris Agreement.

In Paris, world leaders agreed to, among other things, limit average temperature increases, curtail greenhouse gas emissions, implement monitoring procedures, and provide financial and technical assistance to poorer nations.[5] The Obama administration negotiated the Paris Agreement as an executive agreement, rather than a “treaty.”[6] Under U.S. law, a “treaty” must receive the advice and consent of the senate,[7] while executive agreements can be carried out by the president alone.[8] Despite the difference in domestic terminology, all international agreements are considered treaties under international law.[9]

Form notwithstanding, the law respecting withdrawal from international agreements is quite settled as a presidential prerogative. The executive has long held the power to unilaterally withdraw from treaties.[10] In the few instances where this power has been challenged, the courts have balked, preferring to call it a political question that is beyond the power of the courts to answer.[11] It therefore seems likely that any challenge to President Trump’s decision to withdraw from the Paris Agreement would face an uphill legal battle to even establish justiciability.

Should President Trump elect to withdraw from the agreement, the process would take some time. The agreement requires parties wait three years after its entry into force before submitting a notification of withdrawal.[12] Actual withdrawal then occurs only one year after notification.[13] Even adopting the most aggressive possible approach, the United States could not legally withdraw until 2020.

However, the administration may not have to completely withdraw to achieve the goal of nullifying the Agreement. The Paris Agreement is one of many that builds upon the 1992 UN Framework Convention on Climate Change (UNFCCC). If the United States withdrew from the UNFCCC, it would also withdraw from all subsequent protocols and agreements, including Paris.[14] Withdrawal from the UNFCCC requires the same three-year waiting period followed by a one-year notification period, however, since the waiting period expired in 1997, only the one-year notification period remains, meaning the United States could withdraw from the both the UNFCCC and the Paris Agreement after only a year. Such a decision would also withdraw the United States from all other agreements under the UNFCCC, which the administration may view as excessive.

A third route for the administration would be to simply undermine the Agreement. The Paris Agreement requires that states set emission reduction targets and to produce data with respect to their progress, but the targets themselves are not legally binding.[15] The Trump administration could practice a kind of climate change doublespeak, choosing to both remain a party to the Paris Agreement and also disregard the substance of its commitments. Recent U.S. action on climate change has largely come in the form of executive orders and administrative regulatory action.[16] With the support of a Republican Congress, President Trump could simply withdraw the orders and rewrite the regulations.[17] This would undo most of the policy changes implemented in the last eight years and undermine U.S. emission reduction goals, without a formal withdrawal from the Agreement.

While it remains to be seen if Trump really is the climate change skeptic that he embodied on the campaign trail, his administration stands on firm legal footing should he decide to undermine or withdraw from the Paris Agreement. Precedent clearly supports the authority to withdraw, and a Republican Congress with years of pent-up hostility toward President Obama’s climate change policy seems an unlikely check on presidential attempts to undermine the agreement.

[1] Press Statement, U.S. Dep’t St., The Paris Agreement to Enter into Force (Oct. 5, 2016), https://www.state.gov/secretary/remarks/2016/10/262822.htm.

[2] Amy Harder & Sarah Kent, Donald Trump’s Victory Injects Uncertainty into Climate Accord, Wall St. J., Nov. 9, 2016, http://www.wsj.com/articles/donald-trumps-victory-injects-uncertainty-into-climate-accord-1478711146?mg=id-wsj.

[3] Andrea Thompson, Climate Experts Weigh in on Trump’s Election Win, Climate Cent. (Nov. 9, 2016), http://www.climatecentral.org/news/what-climate-experts-think-of-trumps-win-20860.

[4] Donald Trump, (@realDonaldTrump), Twitter (Nov. 6, 2012 11:15 AM), https://twitter.com/realDonaldTrump/status/265895292191248385.

[5] Helen Briggs, Global Climate Deal: In Summary, BBC, Dec. 9, 2015, http://www.bbc.com/news/science-environment-35073297.

[6] Valerie Richardson, White House Defends Obama Evading Senate on Paris Climate Deal, Wash. Times, Aug. 29, 2015, http://www.washingtontimes.com/news/2016/aug/29/obama-will-bypass-senate-ratify-paris-climate-acco/.

[7] U.S. Const. art. II, § 2, cl. 2 (“He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur. . . .”).

[8] See Glen S. Krutz & Jeffrey S. Peake, Treaty Politics and the Rise of Executive Agreements 30-31 (Univ. Mich. Press 2009).

[9] Daniel Bodansky, Legal Character of the Paris Agreement: A Primer, Opinio Juris (Dec. 2, 2015, 11:51 AM), http://opiniojuris.org/2015/12/02/the-legal-character-of-the-paris-agreement-a-primer/.

[10] See Krutz & Peake, supra note 8, at 35-36.

[11] Goldwater v. Carter, 444 U.S. 996, 1003 (1979) (Rehnquist, J., concurring) (“In light of the absence of any constitutional provision governing the termination of a treaty, and the fact that different termination procedures may be appropriate for different treaties, the instant case in my view also ‘must surely be controlled by political standards.’”) (quoting Dyer v. Blair, 390 F. Supp. 1291, 1302 (N.D. Ill. 1975)) (internal citation omitted).

[12] Paris Agreement art. 28, Dec. 12, 2015, U.N. Doc. FCCC/CP/2015/L.9/Rev.1 (entered into force Nov. 4, 2016).

[13] Id.

[14] United Nations Framework Convention on Climate Change art. 25, ¶ 3, May 9, 1992, 1771 U.N.T.S. 107; See Nicolas Loris et al., The U.S. Should Withdraw from the United Nations Framework Convention on Climate Change, (June 9, 2016), http://www.heritage.org/research/reports/2016/06/the-us-should-withdraw-from-the-united-nations-framework-convention-on-climate-change.

[15] David A. Wirth, Is the Paris Agreement on Climate Change a Legitimate Exercise of the Executive Agreement Power? Lawfare (Aug. 29, 2016), https://www.lawfareblog.com/paris-agreement-climate-change-legitimate-exercise-executive-agreement-power.

[16] See Obama’s Environmental Legacy: How Much Can Trump Undo? Yale Env’t 360 (Nov. 14, 2016) http://e360.yale.edu/feature/obama_environmental_legacy_donald_trump_undo/3054/; Andrew O’Reilly, Trump’s Energy Plans Look to Roll Back Obama’s Climate Moves, Fox News (Nov. 21, 2016), http://www.foxnews.com/politics/2016/11/21/trumps-energy-plans-look-to-roll-back-obamas-climate-moves.html

[17] Id.