Climate change law in the time of Trump

38871189 - washington, d.c. at the white house.

With US commitments to climate change emboldened by the personal commitment and executive power of Barack Obama’s presidency, what will President-elect Donald Trump mean for international dialogue and action? Milap Patel, program officer at Open Society Foundations, and formerly with the World Resources Institute, explains how much control rests in the White House.

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Donald Trump has previously claimed that he would ‘cancel’ US support from the Paris Agreement were he to become President. Do you think Mr Trump will attempt to follow through on these claims? Is it possible within the framework of the US legislative and judicial system?

Trump the candidate, and now President-elect, has given every indication that he intends to significantly weaken, if not outright extinguish, US support for the Paris Agreement. The very quick naming of Myron Ebell as head of the Environmental Protection Agency transition team, who denies mainstream climate science, indicates the importance Trump places on setting out an early policy position on climate. Sources from the Trump transition team have already confirmed their pursuance of mechanisms to withdraw. The legislative and judicial systems have very little to do with US ratification of the Paris Agreement, which is governed by a legally binding framework that, on the US side, rested on an executive order issued by President Obama. The agreement was not ratified by the US Senate and was not brought before the judicial system.

The US has agreed and ratified the Paris agreement as of 3 September 2016. Would this prevent Mr Trump from pulling out or even attempting to make alterations?

The Paris Agreement has technical procedures—that have as of yet remained theoretical—on withdrawal. Any country party to the agreement must complete a four-year withdrawal process before leaving the Paris Agreement. However to speed up the process, a Trump administration could withdraw from the 1992 United Nations Framework Convention on Climate Change (UNFCCC), which governs the Paris Agreement. This process would result in an exit from both the UNFCCC and, by extension, the Paris Agreement within one year. Trump could initiate this process by first submitting the ratification of the agreement to the (Republican controlled) Congress if he wanted to make a political spectacle out of it. Withdrawing in this manner would, of course, be an unprecedented flouting of international norms and would have to be weighed very carefully by a Trump administration if it wanted global cooperation in other areas. Now that the Paris Agreement has entered into force, individual countries do not have the ability to force a renegotiation or alteration to the original terms.

The climate agreement allows countries, within reason, to decide what their cutting emissions will be. Could Mr Trump, therefore, ignore, delay or even reverse US national policy?

As President, Trump could direct US negotiators and administrators to remain party to the agreement but just refuse to carry out the US’s nationally determined emission reduction pledge. The Paris Agreement does not provide for any consequences for countries should they fail to meet their commitments. All parties to the agreement are called upon to submit new nationally determined contributions in 2020, which would coincide with the end of a possible first term for a Trump administration. The terms of the agreement call for contributions to be made more ambitious over time so a reversal in emissions reductions goals would not be consistent with those terms.

If Mr Trump does attempt to thwart or undermine the Paris Agreement, how do you think this will affect other countries, such as India and China? Could the new US stance alter these countries’ commitments?

This is among the most unknowable eventualities at the moment. China has already indicated that it views a possible Trump presidency’s stance on the Paris Agreement and climate change as irresponsible and that it would not necessarily sway their own commitment. One of the bright areas for international climate policy in recent years was the cooperation between the US and China, which spurred the rapid ratification of the agreement by other countries. However, many in the climate community recall the George W. Bush Presidency as a cautionary example of where the lack of US leadership caused the crumbling of the Kyoto Treaty (after that treaty itself was negotiated to take into account US concerns). Many will see the abandonment of US pledges and authority as an irresponsible signal to countries not to make difficult decisions on perceived environment/economy trade-offs. On climate finance, the likely withdrawal of US funding for developing countries is not likely to be fully replaced with other sources, such as from the EU or Japan, which will further imperil participation in the agreement. There are significant differences now, however, China more than India feels a greater domestic impetus to rein in emissions and pollution but it’s not hard to imagine India also following suit, given the emergence of pollution as a political issue there. Both countries also have fast growing national clean energy industries that will benefit from a continued commitment to these climate pledges.

Does the US have any other significant environmental policies that may now be under threat, such as the Clean Power Plan?

The Clean Power Plan is the most obvious initial target of a Trump administration, given his campaign rhetoric around the ‘war on coal’. The plan was aimed at reigning in pollution from coal-fired power plants through a series of EPA regulations. It was brought to litigation by several Republican states and is scheduled to go before the Supreme Court early next year. The prospect of a Trump-appointed Supreme Court Justice, to fill the vacancy from Supreme Court Justice Scalia’s death earlier this year, leaves the plan’s future in serious doubt. While the coal industry’s perilous state is more a reflection of market forces, including competition from natural gas, a permissive administration could lift many of the restrictions on oil and gas drilling, pipeline construction, and mine operations that together will boost all fossil-fuel powered energy sources across the country. Federal spending on clean energy research and development is imperilled. Although Trump has acknowledged the importance of clean energy investments alongside fossil fuels, new and emerging clean technologies like electric vehicles and wave and tidal energy are almost certainly off the table in terms of government support.

Has the Marrakesh climate conference included any discussion as to the US position on climate change?

The meeting in Marrakesh was supposed to focus on a welcome problem—the Paris Agreement entered into force faster than anticipated and before rules and processes for implementing the agreement were fully developed. So climate change negotiators at Marrakesh have reacted with alarm at the election of Trump with its manifold threats to international climate cooperation. The Paris Agreement was the culmination of many years of negotiation and compromising and the prospect of a sudden reversal in the agreement’s future due to a new US administration has meant a shift in focus towards unpacking possible future scenarios. Developing countries are increasingly feeling the costly and harmful effects of climate change and now the prospect that they will receive promised amounts of funding and support from developed countries has receded even further. The mood at the end of the first week, however, was one of defiance as many countries saw the US position as important but not one to scupper the entire agreement.

What are the wider implications of Mr Trump’s election for the future of climate change? What other significant issues do you see arising?

Beyond the geopolitical consideration of withdrawal from the Paris Agreement are the harsh realities for climate science. Current global trends take projected planetary warming far above the two degrees Celsius threshold that climate scientists agree is necessary to keep the planet habitable for future generations. The agreement was already criticised by many environmental groups for a lack of ambition in emissions reductions pledges. Without the US’s contribution and the likelihood of any one country or group of countries to step into the breach, the maths for staying below the two degrees Celsius target becomes near impossible. The newly created Green Climate Fund will most likely not receive the US$2.5bn still owed to it by the US, which imperils the lives of many millions of people residing in regions and countries that have the least capacity to deal with an increasingly unpredictable climate. Words and actions have consequences and the world shall soon see just how vital one figure can be.

Interviewed by Julian Sayarer. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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