Last June, President Trump announced he would withdraw the U.S. from the Paris Agreement climate treaty on greenhouse gases. It was a bold move, defying legions of foreign leaders, U.S. politicians, corporate CEOs, media pundits, and activist groups. But there is a faster way to do it than he has chosen—and he should take it.
December 12 is the second anniversary of the adoption of the Agreement, making this a fitting occasion to restate the obvious: remaining in the treaty endangers the U.S. economy, the Constitution’s treaty process, and the nation’s political independence.
The bad effects stem from the fact that then-President Obama, aware the Senate was unlikely to approve the treaty, bypassed the constitutional ratification process and declared it to be an “executive agreement” instead.
President Trump is certainly correct that Obama negotiated a bad deal in the process. Obama’s pledge to reduce U.S. greenhouse gas emissions by 26-to-28 per cent below 2005 levels by 2025—the U.S. “nationally determined contribution” (NDC) in U.N. parlance—would have significant adverse impacts on U.S. jobs, household income, and economic growth.
In contrast, China and India’s NDCs essentially “commit” those countries to follow their current emissions trajectory.
Even if all 195 signatory nations implement their NDCs, the Agreement will have no discernible effect on climate change. For America, the Paris Agreement is great pain for no gain.
The exit option President Trump selected comes from the Paris Agreement itself and takes four years to complete. His decision was also provisional, meaning America will withdraw—unless he can negotiate a “better deal” that is “fair.”
In effect, Mr. Trump invited pro-Paris advocates to try to change his mind, and gave them lots of time for it.
To be sure, other governments may be willing to accept drill-baby-drill as Trump’s new NDC so long as America pays them billions in “climate finance” foreign aid. Nonetheless, staying in the Agreement would still imperil vital U.S. interests.
First, it would validate President Obama’s evasion of the Constitution’s treaty process—his approval of the pact without obtaining the Senate’s advice and consent.
The Paris Agreement is a treaty by virtue of its potential costs to the nation as a whole, dependence on subsequent legislation by Congress, and other traditional treaty criteria.
It is telling that virtually all other parties, including non-democratic regimes like China, ratified the Agreement through their legislatures. Obama’s collusion with foreign elites to adopt an unpopular treaty by deeming it not a treaty becomes a constitutionally-damaging precedent unless President Trump overturns it.
Second, NDC promises are “non-binding” under international law, but that would make them harmless only if elected officials were immune to political pressure—a laughable idea—or balked at the harm they would cause.
Governments honor their non-binding NDCs, however, by turning them into binding laws and regulations. The Paris Agreement is in reality designed to mobilize a permanent, global campaign to “name and shame” policymakers who fail to rig energy markets against fossil fuels.
Why would any sensible person stay in a club organized to browbeat them into acting against their best interests and better judgment?
Moreover, even non-binding commitments can create legal liabilities, as the Netherlands government discovered. Citing the government’s endorsement of non-binding declarations at previous U.N. climate conferences, the Hague District Court ordered Dutch policymakers to match deeds with words and adopt tough new emission controls. Further, membership in the Agreement fuels regulatory and tort litigation on behalf of alleged climate victims.
In short, no revisions of Obama’s NDC can make the Paris Agreement safe for the U.S. But merely following the Agreement’s four-year withdrawal procedure would allow a new President to rejoin in 2021 and pick up where Obama left off. It would also do nothing to repair Obama’s breach of the treaty process.
Mr. Trump should instead send the Agreement to the Senate for a ratification vote, with a recommendation that it be rejected. There is virtually no chance the requisite “two- thirds of the Senators present” would approve the treaty.
After the Agreement dies in the Senate, it is also exceedingly unlikely a future executive would try to rejoin it unilaterally on the pretense that the “most ambitious” climate pact in history is not a treaty.
So don’t follow the treaty’s rules, Mr. President. Follow the Constitution.