President Trump is expected to decide soon whether he will keep his campaign promise to “cancel” America’s participation in the Paris Agreement. His advisors are split, with some like Environmental Protection Agency administrator Scott Pruitt and White House chief strategist Steve Bannon advocating withdrawal while others like Secretary of State Rex Tillerson and Secretary of Energy Rick Perry want America to remain in the pact.
Relying on legal advice prepared by paid counsel for your opponents is presumably not part of the “art of the deal.” Yet pro-Paris Republicans now appear to be taking their cues from Todd Stern and Sue Biniaz, who were respectively U.S. special envoy for climate change and senior U.S. climate negotiator in the Obama administration. The Paris Agreement is their baby.
Retailing Stern and Biniaz’s legal argument, pro-Paris Republicans claim that staying in the Agreement is perfectly compatible with Trump’s pro-growth energy agenda. That is preposterous on its face. The main political forces driving the Paris Agreement negotiations are hostile to fossil fuels. Obama sought to use the Agreement to confer a treaty-like status on his domestic climate policies, including the Clean Power Plan and other anti-fossil fuel regulations Trump is rescinding. Moreover, the Paris Agreement’s emission reduction goal—to cut greenhouse gas emissions roughly 60-percent reduction below 2010 levels by 2050—cannot be achieved without keeping most of the world’s economically-recoverable fossil fuels in the ground.
Nonetheless, establishment Republicans who fear blowback from the green lobby and Swamp Dwellers who hope to use the Agreement as leverage to obtain ‘climate friendly’ tax breaks now find refuge in the Stern-Biniaz legal opinion. They argue as follows. Under the Paris Agreement, a party’s emission reduction pledge—its “Nationally Determined Contribution” (NDC)—is non-binding. That means a party is not only free to break its promises, it is also free to retract them. Trump can swap Obama’s “ambitious” NDC—to reduce U.S. emissions 26 to 28 percent below 2005 levels by 2025—with an NDC that allows rapid growth in U.S. coal, oil, and gas production.
That interpretation is bizarre. The Agreement is designed to encourage climate “ambition.” It mandates that each party submit NDCs—make promises—“reflecting its highest possible ambition” while stipulating no penalties for failure to deliver on those promises. In other words, the Agreement is set up to encourage each party’s reach to exceed its grasp, with the expectation that many or most may fail to deliver on all components of their NDCs. But authorizing parties to revoke their promises to ensure compliance regardless of their level of effort or ambition would undermine the Agreement’s intended political dynamic. Besides, a retractable promise is an oxymoron. When you break a promise, you can’t claim you are actually keeping a different promise than the one you have broken. Only children believe promises are not really promises if you keep your fingers crossed.
The text of the Agreement makes quite clear that parties are only allowed make their current NDCs more ambitious, not less. Article 4.11 states: “A Party may at any time adjust its existing nationally determined contribution with a view to enhancing its level of ambition . . .” (emphasis added). A party is free adjust its NDC “with a view to enhancing its level of ambition.” There is no option to revoke or weaken the NDC once a party officially submits it.
Stern and Biniaz counter that “there is no prohibition on changing in the other direction.” The negotiators could have added, “And the party may not go backward,” but didn’t. How impressed should we be by the absence of prohibitory language in the text? Not very. Two can play that game. Equally absent from Article 4.11 is permissive language stating, “And the party may also go backwards.”
The new Stern-Biniaz line is a variation on the theme they have pushed for years—namely, the Paris Agreement is not a treaty, hence not subject to the Senate’s advice and consent, because NDCs are non-binding. For example, Obama officials made a big deal of their last-minute substitution of the hortatory term “should” for the mandatory term “shall” in Article 4.4, a provision urging developed countries to “continue taking the lead” to reduce emissions.
According to that fairy tale, Obama administration negotiators exempted “the most ambitious climate change agreement in history” from constitutional review as a treaty by changing a single word in a 7,300-word agreement. Now Stern and Biniaz want us to believe that the Agreement is compatible with Trump’s energy agenda because a single sentence actually means the opposite of what it plainly means.
All of this focus on textual curiosities is misdirection designed to divert attention from what actually drives climate policy: political pressure and litigation. The Paris Agreement is inherently dangerous to Trump’s energy agenda, the U.S. economy, and our institutions of self-government because it is set up to organize political pressure and encourage litigation against fossil fuel companies and the U.S. government.
Constitutional Big Picture
The State Department has developed eight common sense criteria for distinguishing non-treaties from treaties—pacts that should be submitted to the Senate for its advice and consent per Article II, Sec. 2 of the U.S. Constitution. The distinction between binding and non-binding emission reductions is not among those criteria.
The Paris Agreement is a treaty by virtue of its costs and risks, dependence on subsequent legislation by Congress, intent to affect state laws, past U.S. practice with respect to similar agreements, and other long-standing criteria, as my colleague Chris Horner and I explain in a policy paper released today.
What it really comes down to is whether the Paris Agreement has large enough potential consequences for the national interest to warrant Senate review. Given the sheer physical magnitude of the climate system, the sheer economic magnitude of the project to transform global energy systems, and the sheer political magnitude of the commitment required to de-carbonize the U.S. economy regardless of the policy preferences of future administrations, Congresses, and electorates, the Paris Agreement is clearly the most ambitious environmental agreement in history. All previous UN-sponsored multilateral environmental agreements were negotiated as treaties.
The current U.S. NDC emission-reduction pledge exceeds all of President Obama’s adopted and proposed climate regulations by 49 percent. The United States could keep that promise only by enacting new laws and regulations. Moreover, such measures would primarily affect the U.S. economy and domestic priorities, not our relations with other nations. In addition, the Paris Agreement falls apart unless industrialized countries make good on their collective promise to mobilize trillions of dollars in “climate finance” subsidies to developing countries over the next 15 years. Congress, not the President, has the power of the purse. By what constitutional logic does the Senate have no role in making a pact promising new laws, new domestic regulatory burdens, and more foreign aid?
Allowing Obama’s climate coup to stand will set a dangerous precedent undermining one of the Constitution’s important checks and balances. Harking back to Obama’s example, future executives will feel free to join any agreement they like, regardless of how unpopular, just by deeming it “not a treaty.” To annul the precedential force of Obama’s evasion of the treaty process, Trump must withdraw from the Paris Agreement, not merely adjust Obama’s NDC.
Political and Legal Risk
Because the Paris Agreement’s emission reduction commitments are non-binding, it is easy to assume—especially when coached by the likes of Stern and Biniaz—that the pact poses no threat to America’s freedom to chart its own course on energy policy. However, the Paris Agreement is a “paper tiger” only on paper.
The Agreement’s emission reduction promises are “non-binding,” but for the United States that is a distinction without a difference. To paraphrase the GEICO ad, “When you’re America, you keep your promises; it’s what you do.” Paris parties honor their non-binding promises by turning them into binding commitments—domestic laws and regulations. The Agreement’s numerous procedural requirements, which deal with reporting, monitoring, and verification, are binding. The procedural churn, which includes regular meetings by some 17 specialized committees and annual conferences of all the parties, will create many opportunities to “name and shame” U.S. leaders who fail to make and keep “ambitious” promises.
If America remains a party, U.S. leaders will continually have to negotiate U.S. energy policy with a multitude of other actors who do not put America’s interests first. U.S. energy policies will become increasingly unaccountable to voters and increasingly beholden to foreign governments, multilateral bureaucrats, and green international pressure groups. That is a plan to weaken America, not make America great.
Finally, non-legally binding does not mean no legal consequence or risk. For every wrong, there is a remedy. The U.S. government cannot join a pact affirming the narrative of impending climate catastrophe and consequent moral necessity for “ambitious” emission reductions without inviting climate tort and regulatory litigation. The Hague Court, for example, recently ruled that the Dutch government had to adopt tougher emission caps because it assumed a “duty of care” to avert harmful climate change when it affirmed “non-binding” declarations and agreements at UN climate conferences.
New York State attorney general Eric Schneiderman organized Attorneys General United for Clean Power partly to “play a crucial role in ensuring that the promises made in Paris become a reality.” The Schneiderman gang has also consulted with legal scholars who regard the Paris Agreement as a “strong basis” for compelling states to implement economy-wide emission reductions under Section 115 of the Clean Air Act.
Trump’s political adversaries are desperate to keep America in the Paris Agreement. They hope that if America remains a party, the EU and other “progressive” governments can keep the Agreement limping along until an Elizabeth Warren or an Andrew Cuomo is elected president and picks up where Obama left off.
If Trump wants to change the direction of the country and not merely win a short-term reprieve for U.S. energy producers and manufacturers, he must disengage America from an international regime engineered to suppress and, ultimately, eliminate access to affordable energy from fossil fuels.