“We’re going to cancel the Paris climate agreement.” Donald Trump, the Republican candidate for the White House, showed off with his blaring promises once again on Thursday, May 26 at a press conference in Bismarck, North Dakota. “This agreement gives foreign bureaucrats control over how much energy we use on our land, in our country,” he stated, as well as predicting that efforts to limit climate change would “kill jobs and trade.” “The federal government should stay out of the energy sector,” he also proclaimed.*
In Bonn, where the annual United Nations session on climate negotiations concluded on May 26, the delegations did not seem to be frightened by this “Trump factor.” “If the U.S. government is implacably hostile to the Paris Agreement, it won’t help, but I don’t think it will derail it,” says French ambassador Laurence Tubiana.
Even if delegates the world over are keeping an eye on American politics, it’s mainly because the U.S. and China, the world’s two biggest greenhouse gas emitters, potentially have the ability to bring other countries into line with their own agenda. The agreement will not enter into force until it is ratified by at least 55 countries representing at least 55 percent of global emissions. At the U.N.-organized signing ceremony on April 22 in New York, Washington and Beijing announced their hope of ratifying the text by the end of the year.
If Donald Trump were elected president of the United States, could he really “cancel” this international agreement, which aims to keep the temperature rise under 2 degrees Celsius? No — or at least not straightaway. His main margin for maneuver rests in Article 28 of the document validated on Dec. 12 at the end of the COP21 meeting in Paris. It allows each of the “parties” (the 195 countries bound by the document, plus the European Union) to cancel the agreement (in other words, to withdraw), “at any time after three years from the date on which this Agreement has entered into force.” “Any such withdrawal shall take effect upon expiry of one year” from the notification of withdrawal, states the second paragraph of the same article.
Four Years to Withdraw from the Agreement
Three plus one equals four years. Donald Trump would therefore struggle to finalize this withdrawal procedure from the Paris agreement before the end of his (potential) first term, which in the U.S. also lasts for four years. If the agreement is already in force by the time he takes office, the Republican politician’s actions would also constitute a violation of international law by the United States, which is a “party to the agreement,” and therefore bound to comply with it.
Under such circumstances, Barack Obama, who has made the fight against climate change one of the priorities of his second term, has an incentive to hurry. If the president is delaying in drawing up an executive agreement, a document exempting the executive branch from a vote in Congress (in the name of federal state competence in foreign affairs matters), this is doubtless in order to file a legal dossier that is as watertight as possible.
This is because the Obama administration is expecting aggressive legal challenges once presidential approval is formalized. It could be given a dressing down through a negative Congress resolution, which would not block the process but would land a political blow to the outgoing president.
The Power of the Supreme Court
According to environmental lawyer Matthieu Wemaëre, another risk is that the Supreme Court could challenge the executive agreement.
Wemaëre reminds us that legal proceedings are ongoing and have already succeeded in persuading the Supreme Court — pending a judgment in June — to suspend the Clean Power Plan. This plan, which was announced six months before COP21, is the cornerstone of America’s contribution to the international fight against global warming, and provides for a 32 percent reduction by 2030 in greenhouse gases linked to electricity generation compared to the emissions recorded in 2005.
This suspension is motivated by legal proceedings brought by 27 majority-Republican states and by industrialists, who are demanding no less than a complete end to this climate plan. They claim that the Environmental Protection Agency, the federal agency charged with monitoring the application of the plan, is exceeding the limits of its powers in matters that, in the plaintiffs’ opinion, are the sole responsibility of the states.
This is therefore a “challenge to Obama’s position,” according to which, anyone connected to carbon dioxide emissions falls under federal jurisdiction, explains Mr. Wemaëre. That said, the risk is not as great as it might seem, since “there is a tradition in Western democracies to not go back on your predecessor’s word with regard to international treaties,” he adds.
A challenge to the executive agreement is unlikely, says Kyle Ash, a specialist in climate issues at the nongovernmental organization Greenpeace in the USA. Relying on a decision by Congress would go against Trump’s “authoritarian leanings,” and in any case, there is “no legal reason for Congress to become involved in this agreement,” seeing as it “does not require any new national legislation.”*
In Kyle Ash’s opinion, the Republican candidate’s promise primarily sends a political message. Donald Trump is clearly trying to “pander to the interests of the fossil-fuel industry and his electors on the right.”*
*Editor’s note: The original quotations, accurately translated, could not be verified.