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Does Mother Nature Get a Vote?

October 19, 2016

DOES MOTHER NATURE GET A VOTE? OUR NEXT PRESIDENT COULD IMPACT AMERICA’S INVOLVEMENT IN THE PARIS AGREEMENT ON CLIMATE CHANGE

By: Taylor Mayhall, Volume 101 Staff Member

Last December, representatives from 195 countries assembled in Paris to converse about a subject which they all felt was worthy of attention on a global scale: climate change.[1] For thirteen days, these representatives debated and deliberated before coming to an agreement on December 12, 2015 in the form of the Paris Agreement on Climate Change.[2] At the very least, the conference showed that 195 countries (namely the 180 that signed, including the United States) recognize the importance of international collaboration if the goal of keeping global average temperature rise below two degrees Celsius above pre-Industrial levels is actually going to be met.[3]

As an evidently important international concern, the subject of climate change, and specifically the Paris Agreement, has popped up in United States presidential election rhetoric on several occasions. While Hillary Clinton is fervent about America’s need to reduce emissions and invest in clean energy,[4] Donald Trump wants to cancel the Paris Agreement and resuscitate America’s coal and fossil fuel industries.[5] The question is, to what extent can the future forty-fifth President of the United States impact America’s involvement in the Paris Agreement and future climate change efforts?

I. LANGUAGE OF THE PARIS AGREEMENT

Part of the debate during the Paris negotiations centered around ensuring America’s participation through use of very particular wording.[6] Remembering how President George W. Bush was able to renege on the Kyoto Protocol,[7] representatives in Paris refused to make the same mistake again.[8] The challenge was creating a legally binding document under international law that could be signed by the U.S. President without the need to consult a gridlocked Congress. Technically a treaty under the Vienna Convention on Treaties,[9] the Paris Agreement builds on the 1992 international treaty that created the United Nations Framework Convention on Climate Change (UNFCCC). Ordinarily, in order for a President to sign a treaty, the Senate must approve it.[10] However, a President can conclude an international agreement without the consent of Senate, if the agreement falls into one of three categories: agreements pursuant to treaty, agreements pursuant to legislation, or agreements pursuant to constitutional authority of the President.[11] Knowing this, the writers of the Agreement exclusively used “shall” language to create legally binding obligations for provisions that the United States had already agreed-to upon becoming a party to the UNFCCC in the 1992 treaty.[12] The provisions that the United States had not already approved contained “should” language, marking “suggestive but not legally binding obligations.”[13] Accordingly, President Obama was able to join the United States into the Agreement using his executive power to join international agreements pursuant to treaty.[14]

For examples of legally binding “shall” provisions, look to Article 4 of the Agreement. Obligations include a duty to “prepare, communicate and maintain … nationally determined” mitigation measures.[15] These measures will be a “progression” past whatever national standard the party had already set for itself and must “reflect its highest possible ambition.”[16] Parties are bound as a matter of international law to “communicate a nationally determined contribution every five years” and “pursue . . . with the aim of achieving” its set goals.[17]

For examples of not-legally-binding “should” language, look to the provisions about actual actions to be taken by parties. Article 4, paragraph 4 says that developed country parties to the Agreement “should continue taking the lead by undertaking economy-wide absolute emission reduction targets.”[18] These same parties “should continue enhancing their mitigation efforts . . . [moving] over time towards economy-wide emission reduction or limitation targets.”[19] In addition, parties “should take action to conserve and enhance . . . sinks and reservoirs of greenhouse gases.”[20]

There is a legal solution for countries wishing to leave the Agreement. Article 21 declares that the Agreement goes into effect thirty days after fifty-five parties to the convention have ratified it.[21] This information is helpful to interpret Article 28, which says that a party cannot withdraw until three years after the Agreement has gone into effect.[22] Once the three years have passed, a party may give written notice of withdrawal to the United Nations Secretary-General.[23] Then the party must wait one year (or until a later date specified in the notice) to be formally withdrawn.[24] In other words, the soonest possible date that a party could back out of the Agreement is four years and thirty days after fifty-five parties have ratified.

II. POWER OF THE NEXT PRESIDENT UNDER THE AGREEMENT

The language of the Agreement makes it possible for the next president to withdraw the United States. Currently, eighty-one countries have ratified the Agreement since it was opened for signature on Earth Day (April 22).[25] The Agreement will enter into force on November 4, 2016, which is thirty days after the necessary fifty-five parties ratified.[26] Accordingly, the United States could give written notice of withdrawal on November 4, 2019, and then officially withdraw on November 4, 2020. Though it may be unwise for the next president to do this, since it could have repercussions on re-electability in the 2020 election, withdrawal is technically within his or her power.

Not only can the next president withdraw the United States, but he or she could slow down progress in such a way that the United States will be unable to meet its pledged mitigation goals.[27] While the next president will be obligated to obey all “shall” provisions in the Agreement (at least until the date of official withdrawal), “should” provisions are not binding, and those provisions describe the actual mitigation efforts to be made. Donald Trump has announced plans that would cause such an obstruction. For example, he declared his determination to de-fund the EPA in order to cut costs.[28] He wants to reopen talks to permit the Keystone XL pipeline, provided that the United States gets some of the profit.[29] He intends to roll back the Obama administration’s environmental efforts, such as the Clean Power Plan.[30] Perhaps most directly impacting America’s emissions, Trump has vowed to revive the coal industry.[31] Of course no one, probably including Trump himself, is sure how many of these plans he would actually complete, since his oratory often seems “made up as he goes along,” depending on the audience.[32]

Though the language of the Paris Agreement technically allows the forty-fifth president to rewind a lot of America’s progress, there are outside forces in the mix that would probably give a future president pause before he or she considers permanently changing America’s stance on climate negotiations. The United States has been naturally inching towards the goals set in the Paris Climate Agreement.[33] America’s carbon emissions have already been decreasing as market forces have caused natural gas to displace oil.[34] U.S. corporate heavyweights such as Google and Apple have started sourcing renewable energy and cutting carbon costs, spurring similar reactions in companies down the line.[35] Local and state movements, like California’s new “super polluter law,” will likely see more support if the federal administration is resistant.[36] Finally, the overwhelming majority of public opinion—64% of Americans are worried about global warming in 2016—supports a move towards cleaner energy and reduced carbon footprints.[37] An adverse administration could slow down this progress, but would not be able to fully stop it.

III. THE REAL THREAT TO PARIS CLIMATE NEGOTIATIONS?

Anne Usher said it best in her June article for Politico: “Ultimately, it is the courts, not Trump, that will likely play the biggest role in determining whether Paris is the fait accompli that [Obama’s climate official] makes it out to be.”[38] On February 9, 2016, the Supreme Court issued a stay order in a case brought by West Virginia and twenty-eight other states challenging specific elements of President Obama’s Clean Power Plan.[39] The Plan is a big part of his effort to put America on track to achieve its carbon emissions targets set out in the Paris Agreement.[40] Issuing a stay is the Supreme Court’s way of telling the executive branch not to carry out any steps implementing the Plan until the case is resolved in court. Currently, the case is under review in the U.S. Court of Appeals for the District of Columbia Circuit.[41] Once a ruling comes down, an appeal may be brought to the Supreme Court. Depending on how the courts rule, Trump may not need to do much work to inhibit America’s advancement towards reaching its mitigation goals.

  1. Paris Agreement, European Comm’n, http://ec.europa.eu/clima/policies/international/negotiations/paris/index_en.htm (last updated: Oct. 18, 2016). ↑
  2. Coral Davenport, Nations Approve Landmark Climate Accord in Paris, N.Y. Times, Dec. 12, 2015, http://www.nytimes.com/2015/12/13/world/europe/climate-change-accord-paris.html?rref=collection%2Fnewseventcollection%2Fun-climate-change-conference&action=click&contentCollection=earth&region=rank&module=package&version=highlights&contentPlacement=2&pgtype=collection. ↑
  3. Paris Agreement–Status of Ratification, United Nations, http://unfccc.int/paris_agreement/items/9444.php (last updated: Oct. 14, 2016); see also U.N. Framework Convention on Climate Change, Paris Agreement, U.N. Doc. FCCC/CP/2015/10/Add. 1, art. 7, ¶ 6 (Dec. 12, 2015), available at http://unfccc.int/files/home/application/pdf/paris_agreement.pdf (“Parties recognize the importance of support for and international cooperation on adaptation efforts.”). ↑
  4. See Climate Change, Hillary for America, https://www.hillaryclinton.com/issues/climate/ (last visited Oct. 19, 2016). ↑
  5. See Benjy Sarlin, Donald Trump Pledges to Rip Up Paris Climate Agreement in Energy Speech, NBC News (May 26, 2016), http://www.nbcnews.com/politics/2016-election/donald-trump-pledges-rip-paris-climate-agreement-energy-speech-n581236. ↑
  6. See, e.g., John Vidal, How a “Typo” Nearly Derailed the Paris Climate Deal, The Guardian, Dec. 16, 2015, https://www.theguardian.com/environment/blog/2015/dec/16/how-a-typo-nearly-derailed-the-paris-climate-deal. ↑
  7. The Kyoto Protocol was the 1997 U.N. Framework Convention on Climate Change (UNFCC) effort to reduce global emissions. ↑
  8. Hari Osofsky et al., The 2015 Paris Agreement on Climate Change: Significance and Implications for the Future, 46 Envtl. L. Rep. 10267, 10273 (2016). ↑
  9. Id. at 10274. ↑
  10. U.S. Const. art. II, § 2. ↑
  11. U.S. Dept. of State, Foreign Affairs Manual, 11 FAM 723.2 (2006), https://fam.state.gov/FAM/11FAM/11FAM0720.html. ↑
  12. Osofsky, supra note 8, at 10274. ↑
  13. Osofsky, supra note 8, at 10274. ↑
  14. See David A. Wirth, Is the Paris Agreement on Climate Change a Legitimate Exercise of the Executive Agreement Power?, LawFare Blog (Aug. 29, 2016, 12:37 PM), https://www.lawfareblog.com/paris-agreement-climate-change-legitimate-exercise-executive-agreement-power. ↑
  15. U.N. Framework Convention on Climate Change, Paris Agreement, U.N. Doc. FCCC/CP/2015/10/Add. 1, art. 4, ¶ 2 (Dec. 12, 2015), available at http://unfccc.int/files/home/application/pdf/paris_agreement.pdf. ↑
  16. Id., ¶ 3. ↑
  17. Id., ¶¶ 2, 8, 9. ↑
  18. Id., ¶ 4. ↑
  19. Id. ↑
  20. Id., art. 5, ¶ 1. ↑
  21. Id., art. 21, ¶ 1. ↑
  22. Id., art. 28, ¶ 1. ↑
  23. Id., ¶ 2. ↑
  24. Id., ¶ 3. ↑
  25. Paris Agreement–Status of Ratification, supra note 3. ↑
  26. Id. ↑
  27. See Anne Usher, How Obama Is “Trump-Proofing” His Climate Pact, Politico (June 6, 2016), http://www.politico.com/magazine/story/2016/06/obama-trump-climate-change-213942 (“What Trump could do, however, is obstruct compliance at home by holding up key appointments, squeezing key agencies’ budgets or taking other executive actions that would have the cumulative effect of slowing down the international momentum Obama has built on climate.”). ↑
  28. Sarlin, supra note 5. ↑
  29. E.g., Renee Cho, Trump vs. Clinton: What the Election Could Mean for Climate Policy, Earth Institute Columbia Univ.: State of the Planet (May 18, 2016), http://blogs.ei.columbia.edu/2016/05/18/trump-vs-clinton-what-their-stances-on-climate-change-could-mean-for-the-paris-accord-and-the-planet/ ↑
  30. Donald Trump, Speech at the Shale Insight Conference (Sept. 22, 2016), https://www.donaldjtrump.com/press-releases/trump-outlines-plan-for-american-energy-renaissance. ↑
  31. Cho, supra note 29. ↑
  32. Usher, supra note 27 (“It all feels rather made-up-as-he-goes-along.”); see also Cho, supra note 29 (“Nobody knows what Trump really believes on anything since his answers seem so off the cuff, dependent entirely on what he thinks the audience wants to hear.”). ↑
  33. See, e.g., Fiona Harvey & Oliver Milman, Trump Won’t Be Able to Derail Paris Climate Deal, Says Senior U.S. Official, The Guardian, May 18, 2016, https://www.theguardian.com/environment/2016/may/18/trump-wont-be-able-to-derail-paris-climate-deal-says-senior-us-official. ↑
  34. Id. ↑
  35. Usher, supra note 27. ↑
  36. Timothy Cama & Devin Henry, Overnight Energy: California Adopts ‘Super Polluter’ Rules, The Hill (Sept. 19, 2016), http://thehill.com/policy/energy-environment/overnights/296714-overnight-energy-california-institutes-super-polluter (breaking the news that California Governor Jerry Brown signed new laws regulating “super polluters”). ↑
  37. Cho, supra note 29. ↑
  38. Usher, supra note 27. ↑
  39. Order in Pending Case, Chamber of Commerce et al. v. EPA (2016), https://www.supremecourt.gov/orders/courtorders/020916zr3_hf5m.pdf. ↑
  40. Lyle Denniston, Carbon Pollution Controls Put on Hold, SCOTUSblog (Feb. 9, 2016, 6:45 PM), http://www.scotusblog.com/2016/02/carbon-pollution-controls-put-on-ha whole range of likelihood for whether the next pres can withdraw.t might also be totally fine.old/. ↑
  41. Id. ↑
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