Donald Trump looks as if he is preparing to pull out of the Paris Agreement. After months of delayed and rescheduled meetings on the topic, the administration has suggested it will make its official decision this week about whether or not to stay in the global pact, which encourages almost 200 nations to cut their climate-change causing emissions. Reports indicate that things aren’t looking good for team “stay.”
Lead by Steve Bannon, White House counsel Don McGahn and EPA administrator Scott Pruitt, a faction of Trumpworld has successfully made the case to the president that the US should quit the deal, according to reports. If the US stays in the pact but pursues Trump’s agenda of fossil-fuel industry boosterism, the US could be in hot water legally, they argue.
President Barack Obama promised to cut US emissions by 26 to 28 percent from 2005 levels. Because Trump is unwinding many of Obama’s climate change-related programs, emissions are likely to fall under Trump by only 14 percent, according to an analysis by the Rhodium Group. McGahn and other anti-Paris advisers argue that under the agreement, the US could somehow face legal action if it does not meet Obama’s promises.
But nearly all diplomats and legal scholars who worked on the deal believe that’s not correct. The Paris Agreement is not legally binding. Over the last week, lawyers and the architects of the deal have parsed its language once more and concluded that the US can revise its emissions-cutting promise at any time, upward or downward, and nothing will happen.
The debate is centered around one line in article 4.11 of the agreement. It states that “a party may at any time adjust its existing nationally determined contribution with a view to enhancing its level of ambition.”
The consensus is, resoundingly, that these words do not require emissions targets to increase. “It came up,” Todd Stern, Obama’s chief climate diplomat, told Vox’s David Roberts. “It was discussed and debated. There were countries that were saying they wanted a legal prohibition of any downward revision of an NDC. We thought that was a bad idea. It would cause any number of countries to lowball their target out of fear of getting stuck.”
The authors of the deal intentionally left out punishments for a nation that decided to be less ambitious. Indeed, this was one of scientists and activists’ chief criticisms of the agreement, which they denounced as toothless.
Other climate law scholars agree with Stern. “Withdrawal of the Clean Power Plan, adoption of an alternative domestic strategy or failure to achieve the US emissions reduction target would not violate the agreement,” wrote Susan Biniaz, a former State Department adviser, and Daniel Bodansky, a law professor at Arizona State University, in a recent analysis of legal issues related to the Paris Agreement. In other words, Columbia University Law Professor Michael Burger summarizes, “remaining in the Paris Agreement does not increase litigation risk for the Trump administration as it pursues its deregulatory agenda.” Trump and his deputies can do whatever they want with regard to the US’ climate change-causing emissions without facing legal ramifications.
Last Thursday, Laurence Tubiana, a French diplomat who worked on the agreement, provided what sounded like a dissenting voice to E&E News, arguing that under the deal a country is not allowed to decrease its commitment. “The sense of the direction is really progress; it’s not going backwards,” she said. But she later argued that her comments had been misinterpreted. “To be super clear: US gov CAN legally downsize NDC but politically they should not,” she tweeted. An “NDC” is a nationally determined contribution, that’s the Paris Agreement’s term for a nation’s promise under the agreement.
Foreign leaders, corporations, investors and activists have been pushing hard to keep the Trump administration in the pact by arguing that the US has nothing to lose by staying.
Its unclear, however, if the administration is willing to listen.
The president’s advisers will meet tomorrow afternoon to come to a final decision about the Paris Agreement. Someone close to Ivanka Trump leaked that the president’s daughter, a proponent of staying in the deal, would meet one-on-one with Scott Pruitt before the larger meeting. The implication in Axios reporter Jonathan Swan’s piece about the leak is that Ivanka hopes to change the EPA administrator’s mind. Her desire to keep the US in the agreement is shared by a number of Trump advisers, including Secretary of State Rex Tillerson, Gary Cohn and military leaders including national security adviser H.R. MacMaster.
We may not have to wait long to see who wins out. The administration has suggested that a decision may come by the end of the day tomorrow — after the strategy session — or later this week.