A Short & Concrete Defense of the Legal Risk Rationale behind the Paris Exit
A significant consideration in President Trump’s pullout from the Paris climate agreement was the legal risk of staying in. As reported by Politico a month ago:
Advocates for withdrawing the U.S. from the pact argue that its terms could somehow interfere with Trump’s plans to roll back the Obama administration’s domestic climate regulations — even though State Department lawyers strongly argue that’s not the case.
The Politico reporters behind this article clearly question the legal argument advanced by pullout proponents. First, the journalists use the modifier “somehow” to intimate incredulity. Then they report that State Department lawyers strongly argue otherwise. (Nota Bene: These journos’ framing is perhaps explained by the famous video from the media room of the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change when it was announced that an agreement had been reached. The scene is one of rapture; it was like a World Series victory locker room celebration sans champagne. ]
The purpose of this post is to briefly explain in a concrete manner the legal risks that justified Trump’s exit from the Paris agreement.
For starters, I should note that I don’t think the agreement is binding. No activist attorney general or zealous environmental group would win on a claim alleging that the agreement, per se, imposed a non-discretionary responsibility to act. However, this doesn’t mean that there is no legal risk attendant to remaining.
Indeed, the Paris climate agreement already has been used to defend a major climate regulation. During the Obama administration, the Environmental Protection Agency’s marquee climate rule was the Clean Power Plan (CPP). Upon that rule’s promulgation, many states, businesses, and non-profits sued to pause (or “stay”) the rule while litigation made its way through the federal courts. In opposition to this request, Obama-era UN climate envoy Todd Stern filed before the U.S. Court of Appeals for the D.C. Circuit a declaration of support on behalf the EPA. As my colleague Marlo Lewis reported,
Stern argues that because the CPP constitutes the biggest piece of the U.S. emission-reduction pledge (Intended Nationally Determined Contribution, or INDC) in the ongoing climate treaty negotiations in Paris, granting the stay could undermine U.S. climate leadership and, thus, other countries’ climate “ambitions.” Putting the CPP on ice could weaken the trust relationships on which the last best hope of earth allegedly depends.
So the Paris agreement already has been an arrow in the quiver of legal arguments supporting the Clean Power Plan. Now, let’s explore how the agreement could have been used to muck up the Trump administration’s planned rollback of Obama-era climate rules, including the Clean Power Plan.
When Article III courts review Article II agency action—such as rolling back a climate rule promulgated by a predecessor administration—they employ an “arbitrary and capricious” standard. To be sure, this is a low bar. Basically, it’s a rule of reason. The agency will carry the day unless it acted unreasonably in the eyes of the court.
In terms of a tangible example, consider the Obama-era methane rules for natural gas that were paused last week by the Trump EPA. By the book, these rules were technically focused on leaks of volatile organic compounds; however, they were trumpeted by the Obama administration as global warming policy, because when you capture volatile organic compounds, you also capture escaped methane, which is a greenhouse gas.
Imagine that the Trump administration had stayed in Paris, and that a year from now the EPA jumped through all the administrative hoops necessary to rescind the aforementioned volatile organic compound/methane rule. Next, activist attorneys general and green groups sue in the D.C. Circuit Court. The petitioners make a number of arguments, but among them is the claim that (paraphrasing):
In addition, the EPA’s decision to rescind this rule is unreasonable because this rule is essential to meeting the historic Paris climate agreement, in which the Trump administration decided to remain. Moreover, the agency unreasonably failed to perform any assessment of how reversing this rule will influence the U.S.’s ability to meet its targets pursuant to the agreement. It is plainly arbitrary and capricious for the EPA to fail to perform such an analysis, given that the Obama-era EPA justified this rule in large part as being necessary to meet our commitment under the landmark Paris agreement.
Of course, I think this reasoning is wrong. Also, I don’t think the odds are favorable that any court would accept this reasoning. However, I also wouldn’t faint with shock if a court bought such reasoning. It’s plausible, IMO. Ergo, it’s a risk. More to the point, the above reasoning would have been used in litigation against each rollback of an Obama-era climate rule.