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Paris Agreement: Is the State Department Running Its Own Game?

Secretary of State Rex Tillerson caused a stir when, on May 11, he signed the Fairbanks Declaration at the Tenth Ministerial Meeting of the Arctic Council, an intergovernmental body formed by eight nations with territories in the Arctic. Tillerson’s signature was newsworthy because the Declaration contains several statements expressing greater concern about climate change, and stronger commitments to address it, than President Trump has expressed to date.

For example, the Declaration calls climate change “the most serious threat to Arctic biodiversity,” notes “with concern” the “pressing and increasing need for mitigation and adaptation actions,” and affirms the need for “global action” to reduce “greenhouse gas emissions.”

According to most media accounts, the Declaration does not prejudge the path President Trump will take on climate policy in general or the Paris Climate Agreement in particular. As one State Department official commented, although the Fairbanks Declaration “takes note” of the Paris Agreement’s entry into force, “it does not obligate the United States to enforce it.” Other Council members, such as Finland, wanted stronger language. Tillerson reportedly pushed back, stating in prepared remarks:

In the United States, we are currently reviewing several important policies, including how the Trump administration will approach the issue of climate change. We are appreciative that each of you has an important point of view, and you should know that we are taking the time to understand your concerns. We’re not going to rush to make a decision. We’re going to work to make the right decision for the United States. The Arctic Council will continue to be an important platform as we deliberate on these issues.

So, to all appearances, the Fairbanks Declaration does not conflict with Trump’s two-part campaign promise to “cancel” America’s participation in the Paris Agreement and stop payments to U.N. global warming programs, notably the Green Climate Fund. The reality is disturbingly different.

Paragraph 31 (p. 6) of the Declaration states that Council Members:

Recognize the importance of scientific assessments and projections to informed decision-making in the Arctic, incorporating as well traditional and local knowledge, and the reliance of Arctic biodiversity and inhabitants on the availability of freshwater, welcome the updated assessment of Snow, Water, Ice and Permafrost in the Arctic, note with concern its findings, and adopt its recommendations. [Emphasis added]

Sounds like innocuous boilerplate, but it isn’t. Paragraph 31 adopts the recommendations of an April 2017 report titled Snow, Water, Ice and Permafrost in the Arctic. The Summary for Policymakers concludes:

The Arctic states, permanent participants, and observers to the Arctic Council should individually and collectively lead global efforts for an early, ambitious, and full implementation of the Paris COP21 Agreement, including efforts to reduce emissions of short-lived climate forcers. (p. 18) [Emphasis added]

Thus, by reference, the Fairbanks Declaration recommends that the United States lead global efforts for “early, ambitious, and full implementation of the Paris Agreement.” That is now the official position of the U.S. government. Yet Trump has not disavowed his campaign promise and recently, at his 100th day speech in Scranton, Pennsylvania, likened the Paris Agreement to the Iran arms deal, deriding it as a “one-sided” arrangement “where the United States pays billions of dollars while China, Russia, and India have contributed and will contribute nothing.”

The preamble of the Fairbanks Declaration reaffirms “the United Nations Sustainable Development Goals and the need for their realization by 2030.” The reference here is to U.N. Resolution A/RES/70/1, “Transforming Our World: the 2030 Agenda for Sustainable Development,” adopted in September 2015. Goal 13 of the Resolution is to “Take urgent action to combat climate change and its impacts” (p. 27). One of the sub-goals is to:

Implement the commitment undertaken by developed country parties to the United Nations Framework Convention on Climate Change to a goal of mobilizing jointly $100 billion annually by 2020 from all sources to address the needs of developing countries in the context of meaningful mitigation actions and transparency on implementation and fully operationalize the Green Climate Fund through its capitalization as soon as possible.

Thus, by reference, the Fairbanks Declaration affirms the “need” for the United States to help mobilize $100 billion in annual “climate finance” by 2020 and help capitalize the Green Climate Fund “as soon as possible.” This is exactly the sort of “one-sided” arrangement Trump disparaged in Scranton.

I have never met President Trump, but he does not strike me as someone with much patience for subordinates who fail to do due diligence. Presumably, he is even less pleased with subordinates who run their own game and weaken his negotiating leverage by making commitments he has not approved and very likely opposes.

On May 26 and 27, President Trump will attend the G7 Summit in Italy, where his counterparts and other participants are expected to press him to remain in the Paris Agreement. Did Secretary Tillerson, who supports the Agreement, knowingly sign a Declaration others can cite as U.S. commitments to remain in the pact and support the Green Climate Fund?

Or did wily Foreign Service Officers keep the subtexts hidden from Tillerson so that both he and Trump could be blindsided in future diplomatic palavers?  

Or was this another instance of the pro-Paris faction’s propaganda that “non-binding” promissory language carries no economic, political, legal, or constitutional risks?

From day one, their line has been that the Paris Agreement is a risk-free arrangement because its emission-reduction and climate-finance commitments are “non-binding.” That is preposterous.

Under the Paris Climate Agreement, nations honor their non-binding promises by turning those into binding obligations—domestic laws and regulations. The Agreement is engineered to mobilize political pressure and diplomatic blowback against any president who dares to champion the American people’s freedom to develop the nation’s energy treasure. So the economic risk to America and political risk to Trump are immense and obvious.   

Nor is that all. The Paris Agreement’s save-the-planet promissory language is music to the ears of the climate litigation fraternity and activist judges. If the United States remains a party to the Agreement, progressive attorneys general and trial lawyers will cite “America’s commitments” in court cases challenging Trump’s rollback of the Clean Power Plan and other elements of the current U.S. “nationally determined contribution” (NDC) to the pact’s emission-reduction goals.

In addition, although the Paris Climate Agreement does not specify economic penalties for non-compliance, many proponents expect and want the pact to be enforced via “border taxes” calibrated to the carbon content of imported goods. Such a system would require a new IRS just to administer, and would thus expand rather than shrink the administrative state.

Finally, Obama evaded the constitutional treaty-making process because he knew the Senate would not consent to new international climate commitments. Staying in the Agreement will legitimize Obama’s usurpation, weakening one of the Constitution’s important checks and balances.     

President Trump deserves a full accounting of the State Department’s handling of the Fairbanks Declaration. Who at State signed off on language implicitly committing Trump to lead global efforts “for an early, ambitious, and full implementation of the Paris Agreement”? Who signed off on language implicitly committing him to capitalize the Green Climate Fund?

What were they thinking? If clever people were trying to make it harder for Trump to pull the plug on the Paris Agreement, heads should roll.