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Misdirected Paris Agreement Debate Fixates on Meaning of 'May'

This being Washington, D.C., the world capital of misdirection, debate on whether President Trump should keep his campaign promise to “cancel” America’s participation in the Paris Climate Treaty or remain in the pact supposedly hinges on the meaning of the word “may” in Article 4.11. The provision states that “A Party may at any time adjust its existing nationally determined contribution with a view to enhancing its level of ambition.”

A nationally determined contribution (NDC) is the five-year emission-reduction goal a party promises to pursue along with a corresponding set of policies. For example, the U.S. NDC pledges to reduce emissions 26-28 percent below 2005 levels by 2025 and includes the Environmental Protection Agency’s so-called Clean Power Plan plus all other regulations the Obama administration adopted or proposed. The EPA estimated last year the entire suite of adopted and proposed Obama administration climate policies would fall short of the promised emission reduction by 49 percent.

Consequently, to meet the NDC goal, President Trump would have to keep Obama’s policies in place and adopt new even more “ambitious” climate regulations. However, President Trump is instead unwinding Obama’s greenhouse gas regulatory policies.

Clearly President Trump’s pro-growth energy agenda conflicts with the current U.S. NDC. The obvious solution is for Trump to “cancel” America’s participation in the Agreement, which then also cancels the NDC as an official commitment of the United States.

However, certain influential people are desperate to keep Trump from pulling out. Those include former Obama climate negotiators Todd Stern and Susan Biniaz, State Department types who know a full employment program for diplomats when they see one, and energy industry lobbyists who hope participation in the Paris Agreement will help them win support for ‘climate friendly’ tax breaks. They claim Trump can rescind Obama’s NDC without breaking any promise to the international community, because Article 4.11 allows parties to “adjust” their NDCs to decrease the level of ambition.

Read the text again. A party “may” adjust its NDC “with a view to enhancing the level of ambition.” Stern et al. argue that the text doesn’t expressly prohibit parties from adjusting their NDCs to make them laxer. Well, two can play that game. Nor does the text expressly allow parties to do the opposite of what it allows them to do.

Somewhat more plausibly, the Stern gang argue, NDCs are non-binding under international law, so Trump may do whatever the heck he wants without breaking any official U.S. promises. But it’s one thing to say there are no legal penalties for failing to do what you promised, and quite another to claim that promises once made can be unmade—annulled without withdrawing from pact under which they were submitted.

A central purpose of the Paris Agreement is to encourage climate “ambition.” It is understood—and expected—that each party’s reach will exceed its grasp. However, the Agreement fails to encourage ambition if parties may “at any time” erase the gap between what they promised and what they achieve. Children may believe a promise is not a promise if you cross your fingers behind your back. Adults are supposed to know that once you make a promise, you can either keep it or fail to do so. You can’t revise the promise after-the-fact to avoid criticism for having broken it.

To be sure, you can release yourself from a contractual obligation if the other party doesn’t keep his end of the bargain, but that’s not the situation here. Nobody is alleging that the EU, China, or other parties are rescinding their NDCs.

Other top architects of the Paris Agreement reject Stern’s claim that NDCs are just retractable wish lists rather than official commitments. As noted in ClimateWire (subscription required), “Laurence Tubiana, France's climate ambassador during the 2015 summit that produced the agreement, gave Trump no quarter in an interview with E&E News yesterday, reading a controversial provision to say Trump must keep the U.S. target or tighten it. That scenario would likely be seen among presidential advisers as a reason to withdraw from the global pact.” Quoting Article 4.11, Tubiana said: “The text is very clear. The sense of the direction is really progress; it’s not going backwards.”

Similarly, former Indian Environment Minister Jairam Ramesh, citing both Article 4.3 (each successive NDC “will represent a progression beyond” the current NDC and “reflect [the party’s] highest possible ambition”) and Article 4.11, opined that “The absence of clear legal language precluding downward adjustment cannot mean that downward adjustment is possible.” That, he said, “will defeat the soul and spirit of the Paris Agreement.”

As it turns out, Stern himself has argued that the Paris Agreement allows no backsliding. In a briefing before the Brookings Institution on December 17, 2015, shortly after the Paris Climate Summit adopted the Agreement, Stern said: “We started with the completely extraordinary fact that here were 186 countries that had put forward their targets, their so-called INDCs in the lingo, during the course of 2015. And then there was an architecture built around that in the agreement of five-year cycles to ratchet those up. And countries either put in new targets or, if they’re in the middle of a longer target period, they have to either revise it upward or reconfirm it every five years. And the five-year cycle follows a global stock-take to see where we are in the aggregate vis-à-vis our long-term goals, vis-à-vis what science is telling us. So you’ve got an every-five-year stock-take and then about a year after the every-five-year stock-take countries have to either reconfirm and say, yes, I’m going to hold where I am or I’m going to increase where I am or if they’re in the period of time where they have to put in a target anyway, obviously they do. So that was really important.”

If a legal disputation about the meaning of “may” in Article 4.11 sounds to you like a ridiculous basis on which to decide whether America should stay in or withdraw from the “most ambitious” environmental pact in history, that’s because it is.

What Trump administration officials should be debating is 1) whether President Obama joined the Paris Agreement in an underhanded way, undermining the Senate’s constitutional role in treaty-making, and 2) whether the Agreement is designed to make U.S. energy policy increasingly unaccountable to voters and increasingly beholden to foreign governments, multilateral bureaucrats, and anti-fossil-fuel pressure groups. The answer to both questions is yes, as my colleague Chris Horner and I explain in a policy paper published this week.

If the debate were focused on those fundamental issues, rather than the textual curiosities on which Stern et al. are fixated, President Trump would have no trouble deciding what to do.