The Trump Administration is reported to be contemplating a withdrawal from the Paris Agreement. If they did not withdraw, they are also considering the option of revising the U.S.’ pledge under the agreement, known as a nationally determined contribution (NDC). The impetus for considering a withdrawal, despite the Paris Agreement’s non-binding nature, is that remaining in the deal could be used as a legal justification for challenging the Environmental Protection Agency’s (EPA) retrospective revisions of the previous administration’s climate regulations. This justification for withdrawal from the Paris Agreement for legal considerations is flawed, and from a policy perspective withdrawing from the deal would have serious ramifications for foreign policy.
Legal Ambiguity on Regulations, Deregulation, and the Paris Agreement
The U.S.’ NDC is a pledge to cut emissions by 26-28 percent relative to 2005 levels. This figure comes from the Obama Administration’s estimation of what emissions reductions were achievable under existing laws. However, the legality of those regulations was never assured. Furthermore, the economic justification of those regulations to satisfy the requirements of Executive Order 12291 (which Obama kept) was reliant on ancillary benefits (climate benefits, health co-benefits, etc.) which are difficult to prove and potentially double-counted. The controversy in how the EPA and other regulators calculated the benefits of air quality regulations meant that it is easy for the new administration to simply set a new bar for the quality of regulatory impact analyses (which they did under a recent executive order). Essentially, regulations implemented under the previous administration are no longer considered net-beneficial, and are much less likely to survive legal challenges or receive any defense from regulators.
As this relates to the Paris Agreement, there are some concerns—particularly within the EPA’s new staff—that remaining in the deal could create a legal defense for regulations they want to see unwound. As an example, section 115 of the Clean Air Act (CAA) requires the U.S. reciprocate air quality efforts if there is a treaty in place, and some have argued that the Paris Agreement satisfies this section of the CAA and obligates U.S. regulators to maintain or expand greenhouse gas regulations. There is a concern that states could implement their own regulations, or challenge federal regulatory revisions, based on the idea that compliance with the Paris Agreement requires governmental support. However, this argument is hogwash.
First, the Paris Agreement’s non-binding nature is important. It means more than just that it does not have any enforcement provisions—it means that it does not change any existing laws. If the Paris Agreement required new laws, or imposed any legal obligation whatsoever on the American people, it would have required ratification from the Senate. Any attempt to use the Paris Agreement to satisfy section 115 of the CAA would have to prove the Paris Agreement as legally binding, and also prove that other participants are adequately reciprocating U.S. regulations—which would be difficult to prove considering China, India, and Russia’s NDCs all allow emissions to increase beyond their projections. Regulations have to be legal regardless of the U.S.’ participation in the Paris Agreement, and it would be a huge overreach of executive authority if the president could use a non-binding international agreement to legally defend unilaterally implemented federal policies.
Second, lawyers reviewing section 4.11 of the Paris Agreement (which allows states to alter their NDCs with a view towards “enhancing their level of ambition”) asserted that revising an NDC to be less stringent is perfectly acceptable legally for two reasons. One, enhanced ambition is not stipulated as a requirement for the revision of the NDC, only a suggestion; and two, it was the sense of the drafters of the Paris Agreement that states should be able to revise their NDC at will, for any reason, and that limiting them to one direction for revisions would discourage ambitious targets. In short, no, there is no good reason to believe that the Paris Agreement could be used to justify any encroachment on the EPA’s authority to revise or rescind regulations, or be used to dispute any court challenges to regulations. There is also no reason to believe that it is illegal to revise a Paris Agreement target to be weaker.
Do Not Miss the Forest for the Trees
What the Administration, and other policy experts, should be most focused on is how the Paris Agreement fits into broader foreign policy, including climate policy. As the American Security Project has pointed out, the intent of the Paris Agreement should be to provide transparency in emissions counting, and create a platform for nations to cooperate bilaterally or multilaterally on climate issues separate from the Paris Agreement. It should not be the goal of the Paris Agreement to compel other nations to reduce their emissions. Rather, that is a task left to nations. Producing a binding climate deal is much easier if it can have exclusivity in participants, as well as transparency in its compliance. The Paris Agreement makes the pathway to such agreements much easier, and as such is a stepping stone to more meaningful policy in the future.
If the administration pulls out of the Paris Agreement in the hopes of avoiding domestic legal battles, which the administration would likely win anyway, then it is also throwing a wrench into its future foreign policy efforts. No nation would be able to take a promised deal from Trump (or his successors) at face value; they could never ignore the possibility that the deal could be reneged on. This will compel other nations to demand greater concessions or assurances from the U.S., which will negatively impact all aspects of the U.S.’ foreign policy, not just its approach to the Paris Agreement.
The idea that withdrawing from the Paris Agreement will shore up legal challenges to policies the administration opposes is poorly thought out. The nature of the Paris Agreement as non-binding means that it has no legal standing to be used as a justification for governmental policies, and does not obligate the U.S. to take any action. Withdrawing from the deal would produce a mostly symbolic victory for opponents of the deal, but would come at the cost of the U.S.’ legitimacy in future international negotiations. Revising the U.S.’ pledge to be more consistent with the president’s deregulatory policies would be a better approach that maintains U.S. credibility, and eliminates any perception of regulatory obligations.