The Paris Agreement – Au Revoir?

by Susan Biniaz*

On June 1st, we will hit the two-year mark since President Trump announced his intention to pull the United States out of the Paris Agreement.  We are also getting closer to November 4th, the first day on which the withdrawal process can actually begin.  While there is no realistic expectation that the Administration will reconsider its decision to withdraw, it is nonetheless worth stepping back to examine various facts and fictions surrounding the Agreement, U.S. withdrawal, and related issues.

 

What Does the Paris Agreement Do?

• The Paris Agreement combines agreed global goals with national flexibility.
• A key goal is to limit the increase in global average temperature to well below 2^oC (and to pursue efforts to limit it to 1.5^o).
• Each Party decides on its own greenhouse gas emissions targets, reflected in a so-called “nationally determined contribution,” taking into account its unique national circumstances. Targets are not legally binding, meaning it is not a violation of the Paris Agreement if a Party does not achieve its target.
• There are strong reporting and review provisions, so we know the level of greenhouse gases each Party is emitting and what kind of progress it is making in implementing its targets.
• There are also regular global reviews, so we can assess how the world is doing collectively.
• All countries are covered by the terms of the Agreement, and nearly all of them have joined.

 

That Sounds Like the Opposite of the Kyoto Protocol.

• That’s right.
• As will be recalled, the United States never joined the Kyoto Protocol.
• Kyoto contained emissions targets that were internationally negotiated and legally binding. Developing countries, even those with significant rising emissions, had no targets.
• Even before the Kyoto negotiations were concluded, the Senate expressed its (95-0) view, in the “Byrd-Hagel Resolution,” that any future climate change agreement should neither harm the U.S. economy nor contain legally binding emissions commitments for the United States without also containing binding commitments for developing countries.
• President Clinton did not pursue Kyoto, in the absence of “meaningful participation” from “key” developing countries, and President George W. Bush more forcefully rejected Kyoto, citing the standard reflected in the Senate Resolution.
• Late in the second term, President Bush rejoined negotiations under the Framework Convention on Climate Change, an agreement that the United States had joined under President George H.W. Bush.

What Kind of Agreement Did the Bush 43 Administration Seek?

• The Bush Administration sought a climate change agreement under which “nationally appropriate” climate actions were determined by each Party and were not legally binding. At least the major developing countries, particularly China, needed to have commitments.  Reporting and review were essential.

 

So the Bush Administration Sought an Agreement like Paris?

• Yes. The Bush Administration sought the kind of inclusive, flexible, and transparent structure that the Paris Agreement reflects.
• The Bush Administration was not able to achieve the kind of agreement it sought for several reasons, including that it ran out of time and that it likely did not have sufficient credibility on climate change to pull other countries away from the Kyoto model.
• (Of course, it’s possible that no U.S. Administration would have been able to do that in 2008, as the world may simply not have been ready to take a starkly different approach.)

 

Does Paris Meet the Byrd-Hagel Test? 

• Yes.
• The Obama Administration was strongly influenced by the policies underlying the Byrd-Hagel Resolution in terms of its international climate policy.
• On the issue of parallelism between developed and developing countries, the Administration made clear from the very beginning that the United States would not agree to any agreement that included legally binding emissions commitments for developed countries without such commitments from developing countries, at least the major-emitting ones.
• The Administration also addressed the “harm to the U.S. economy” prong of Byrd-Hagel by advocating an approach under which each Party would define its own emissions commitment based on its national circumstances (and not have to negotiate it, Kyoto style, with other countries).
• The first climate instrument concluded under the Obama Administration was the Copenhagen Accord (later elaborated in the Cancun agreements), which included self-determined, non-legally binding emissions commitments from over 80 countries, including all the world’s major economies, both developed and developing. It also provided for transparency, i.e., reporting and review.
• U.S. support for both developed/developing country “parallelism” and self-determined targets continued during the negotiation of what became the Paris Agreement. As noted above, both objectives were achieved.
• The Byrd-Hagel Resolution technically does not apply to Paris, because the emissions targets are not legally binding. But Paris clearly reflects the Resolution in spirit.
  • In sharp contrast to Kyoto, the Paris Agreement applies to developed and developing countries alike.
  • In addition, the Agreement does not dictate targets; each Party determines its own. While a nationally determined target could, theoretically, have a serious economic impact, this is unlikely; the Agreement does not require a Party to achieve its target, and a Party facing serious harm to its economy would have the discretion not to achieve it.
  • Another way in which Paris is unlike Kyoto is that a Paris Party can adjust its target in mid-stream, including if it were to determine that achievement of a particular target would have an unacceptable domestic economic impact.

 

Would Senator Hagel Agree?

• Apparently so.
• Former Senator and Secretary of Defense Chuck Hagel testified on April 9th, 2019, at a House hearing on “The Need for Leadership to Combat Climate Change and Protect National Security.”
• In his statement, he noted that he “supported the 2015 Paris Climate Agreement because it met the requirements of the Byrd-Hagel resolution, ensuring that all nations take measurable, reportable, and verifiable steps to reduce their emissions.”

 

Wait – Why Would We Withdraw from an Agreement that Achieved Longstanding U.S. Objectives?

• The arguments put forward for why the United States needs to withdraw from Paris are not persuasive.
• Let’s take them in turn.

 

Argument #1:  Withdrawing from Paris Was a Campaign Pledge.

• Before the election, Candidate Trump did not literally pledge to withdraw the United States from the Paris Agreement. He said he would “cancel” the Paris Agreement.
• Given that it is not actually possible to “cancel” a global agreement that is already in force, the pledge could be fulfilled in at least two different ways: by withdrawing from the Agreement completely; or by staying in the Agreement but replacing the existing U.S. emissions target with one that is more consistent with this Administration’s policies.  As noted, targets are nationally determined.
• Thus, it is not actually necessary to withdraw from the Agreement in order to fulfil the campaign pledge.
• Moreover, President Trump’s withdrawal announcement, as well as subsequent Administration pronouncements, left the door open to staying in the Agreement (on terms variously described as “fair,” “suitable,” or “more favorable”). Thus, the Administration itself must not consider withdrawal the only campaign pledge-consistent option.

 

Argument #2:  Paris Will Devastate the U.S. Economy.

• In his withdrawal announcement, President Trump stated that the Paris Agreement “punishes” the United States, including that it would impose “draconian” economic burdens and put us at a “very, very big economic disadvantage.”
• As noted, the Paris Agreement itself (unlike Kyoto) does not actually contain any emissions targets. Rather, each Party designs its own targets and submits them.
• If the Trump Administration does not favor the emissions target put forward by the United States under the Obama Administration (a 26-28% reduction in greenhouse gas emissions below 2005 levels in 2025), it is free to put forward a different nationally determined contribution.
• As noted, one of the many flexibilities in the Paris Agreement is that Parties can make mid-stream changes to their contributions, even if they are less environmentally ambitious. Greater ambition is (obviously) encouraged but not legally required.
• Given that the Administration has left open the option of remaining in the Agreement on other terms, such terms could include submission of a different U.S. nationally determined contribution.
• Alternatively, the Administration could seek enhanced ambition from other major economies. It could even begin the withdrawal process this fall and use the year before its completion to explore this option and complete withdrawal only if it had not secured appropriate enhancements from others.

 

Argument #3:  Paris Might Thwart the Rollback of U.S. Domestic Laws.

• Various opponents of Paris, including former EPA Administrator Pruitt, have raised concerns about domestic legal risks of remaining a Party.
• The argument appears to be that the Agreement might be invoked to restrict Executive Branch prerogatives regarding domestic environmental laws, with particular focus on the intended rollback of the Clean Power Plan.
• These arguments are without merit.
• The Agreement is not of the type that can normally be invoked in a domestic court. Even if it were, the Agreement does not legally require a Party to achieve its emission target. Even if it did, the Agreement does not require any particular domestic laws or policies to achieve the target (or prohibit changing existing laws or policies).
• Moreover, it should be considered whether withdrawing from the Agreement could create (as opposed to reduce) legal risk for the Government, particularly in relation to novel theories increasingly being tested in U.S. courts.

 

Argument #4:  Paris Should Have Gone to the Senate for Advice and Consent.

• The President did not include this argument in his withdrawal announcement, but it has been raised by others.
• There is no legal merit to the argument – it’s not a close case.
• Given the content and character of the commitments in the Agreement, the President had ample authority to join the Agreement, through a combination of Executive authority and authority conferred by treaty (the UN Framework Convention on Climate Change, approved by the Senate). Legislation conferred additional authority.
• It should also be noted that the Senate itself expressed no contrary view.
  • The Senate never expressed a view on the form that the Paris Agreement should take.
  • At a Senate Foreign Relations Committee hearing before Paris, the Administration made clear that it intended to treat the agreement as an executive agreement, assuming the targets ended up being non-legally binding – an outcome that the United States supported but which was not yet clear.
  • Before Paris, eleven Senators wrote to President Obama asking questions about the intended U.S. emissions target. Their letter posed the question whether the Administration intended to treat the future agreement as a treaty or not, but this small group did not take a position on the matter.
  • A white paper produced by the Senate Environment and Public Works Committee noted a few proposals for a Senate resolution in favor of sending the future agreement to the Senate, but none of these came close to commanding a Senate majority.
  • After the United States joined the Paris Agreement, twenty-two Senators wrote to President Trump to argue in favor of withdrawal. They focused on potential litigation risk, not even raising the issue of whether the Agreement should have been done as a treaty.
• It is also instructive to note that the text of the Byrd-Hagel Resolution suggests that a future climate change agreement might or might not warrant Senate advice and consent.
• In sum, arguments that the Paris Agreement needed Senate approval are constitutionally incorrect and were not even expressed by the Senate itself.

 

Meanwhile, Has the Trump Administration Ever Clarified its Terms for Remaining in Paris?

• As noted, the President and his Administration have stated that the United States is open to re-engagement if it can secure better terms.
• However, it does not appear that such terms have ever been clarified.
• In theory, there are at least five ways in which the United States could establish different terms of participation.
• First, at one end of the spectrum, the United States could seek to renegotiate aspects of the Agreement itself. If so, it has given no indication of which provisions it has in mind. Further, several key countries have seemingly made clear (through repeated statements that the Agreement is “irreversible”) that this is not an option for them.
• Second, at the other end of the spectrum, as noted, it could modify its “nationally determined contribution,” i.e., the U.S. emissions target. There would be no need to get the agreement of other Parties to do so. The contribution could be made to reflect the Administration’s stated support for a “climate policy that lowers emissions while promoting economic growth and ensuring energy security” and its intent to continue “to reduce our greenhouse gas emissions through innovation and technology breakthroughs….”
• Third, as noted, the United States could seek enhanced ambition from other countries, whether in relation to their nationally determined contributions or otherwise.
• A fourth option relates to the package of guidelines, modalities, and procedures under the Paris Agreement, which the United States could conclude reflects acceptable terms of engagement. Shortly after President Trump’s withdrawal announcement, the Administration indicated that the United States would continue to participate in the post-Paris negotiations “to protect U.S. interests and ensure all future policy options remain open to the administration.”  The guidelines, completed last December in Katowice, Poland, serve to elaborate the Paris Agreement and – in terms of content — deal the final blow to the Kyoto model.  The Katowice package, perhaps in combination with other options, could conceivably form the basis for terms that are acceptable to the Administration.
  • One aspect of the guidelines relates to the clarity of Parties’ nationally determined contributions. The Agreement called for each Party to accompany its nationally determined contribution with the information necessary for it to be clearly understood.  The Katowice guidance sets out the types of information that each Party is to provide, as appropriate to its particular NDC.
  • Another important aspect relates to the Agreement’s transparency framework. Developed countries were already subject to extensive reporting and review requirements in relation to both their emissions of greenhouse gases and the implementation of their mitigation targets.  Paris puts all countries into a common system of reporting and review, adding specificity and substantially augmenting the requirements for developing countries while according necessary flexibility where there are capacity needs.  Strong transparency, which the United States has historically championed, will shine a light on individual Parties’ performance, as well as the extent of the collective global response.  (In a Media Note, the Trump Administration commented that the Katowice outcome “took a significant step toward holding our economic competitors accountable for reporting their emissions in a manner consistent with standards the United States has met since the early 1990s.”)

• Finally, the United States might seek improved terms outside the framework of the Agreement, such as through bilateral or multilateral energy-related cooperation.

 

What are the Downsides of U.S. Withdrawal?

• There are demonstrably no affirmative reasons to get out of the Paris Agreement.
• Are there affirmative reasons to stay in?
• Yes, several.

 

Reason #1:  Promoting Climate Action Abroad

• To a certain extent, other Parties will continue to take a variety of climate-related actions no matter what the U.S. federal government does, e.g., because they seek to mitigate climate risks, because their actions are also good for their economies, because U.S. non-State actors are taking action, etc.
• But the withdrawal of the United States – the world’s largest economy and second biggest emitter — cannot help but de-inspire others. While serious climate actions of U.S. states, cities, and companies help ensure that the United States is not viewed as a monolith, other countries seeking to do less could easily point to U.S. withdrawal as a handy excuse.
• If one doesn’t see climate change as a threat, one might dismiss this point, i.e., why do we care if others do less? But, if one views the threat to the world as real, it is hardly in America’s interest for other countries to reduce the scale or speed of their climate risk reduction strategies.

 

Reason #2:  Our Own Security 

• Even if one takes an exclusively U.S.-oriented approach to what we should care about, the national security implications for the United States are serious.
• One of the major worries about climate change is the potential for its impacts to cause instability.
• Impacts such as drought, famine, and sea level rise could lead to humanitarian disasters, migration, displacement, and conflict.
• U.S. military sites around the world are also at risk.
• It is no wonder that U.S. military and other leaders consider climate change a direct threat to our national security.
• Congress has taken the same position, most recently in the 2018 National Defense Authorization Act.

 

Reason #3:  Broader Foreign Policy Implications

• There are reasons to be concerned about U.S. withdrawal for reasons beyond climate change.
• First, we hand China a gift in the form of allowing it to become the international leader on an issue of global importance.
• Second, we likely make it more difficult for the United States to be listened to in future negotiations on other issues. In the case of the Paris Agreement, the world took on board the U.S. critiques of Kyoto and supported, in essence, a U.S. vision of the Agreement (e.g., non-binding, nationally determined targets; inclusion of all countries; strong transparency system).  If the United States walks away, it would be perfectly understandable (albeit highly regrettable) if other countries thought twice before accommodating the United States in other contexts.

 

Assuming the United States Sends in a Withdrawal Notice on November 4^th, Will We Immediately Cease to Be a Party?

• No. Per the terms of the Agreement, withdrawal will take effect one year later.

 

Once a Withdrawal Notice is Submitted, Can It Be Taken Back?

• Yes. A Party may withdraw its withdrawal, so to speak, during the year before withdrawal takes effect.
• Thus, hypothetically, if the Trump Administration began the withdrawal process and determined during the subsequent year that its terms for re-engagement had been achieved, it could reverse the withdrawal process.

 

Could a Future Administration Decide to Re-Join Paris?

• Yes. The United States could re-join the Agreement at any time.  Its participation would take effect thirty days after re-joining.
• It would need to develop a nationally determined contribution, whose scope, stringency, and target year(s) would be decided by the United States.

 

Because the arguments in favor of leaving Paris are unmeritorious, and because the downsides of leaving are so serious, it is hoped that, if the Trump Administration ultimately withdraws, a future Administration will re-engage as a matter of high priority and make the Trump Administration’s “goodbye, Paris” more like “au revoir.”

*Susan Biniaz is a former Deputy Legal Adviser at the U.S. Department of State. She was the lead climate lawyer, and a negotiator, from 1989 until early 2017.  Since leaving the Government, she has been teaching at Yale Law School and the Yale Jackson Institute for Global Affairs. She has also been a David Sive Visiting Scholar at the Sabin Center for Climate Change Law.