Trump’s Withdrawal from the Paris Agreement is Legally Meaningless.
The Clean Power Plan is still the law of the land. States are still obligated to comply with the EPA’s carbon emissions standards — even if the EPA doesn’t enforce them for the next three and a half years.
The news that President Donald J. Trump has decided to withdraw the United States from the Paris Agreement on climate change is an unmitigated disaster for the climate security movement and, moreover, for America’s reputation as an honest broker. The entire purpose of international treaties, conventions, and protocols is for sovereign nations to commit to courses of conduct which will endure regardless of a change in government. Without an enforcement body, nations can only trust their peers to abide by their promises so long as they keep their own word. By unilaterally withdrawing from the Paris Agreement, Trump has committed a breach of diplomacy which has tarnished our credibility among nations and diminished America’s standing in the world.
… However, at the same time, the U.S. withdrawal from the Paris Agreement does not actually change any environmental laws or any tangible air pollution policies whatsoever. The Paris Agreement is not a treaty — it is a non-binding, unenforceable agreement. By “withdrawing” from the Paris Agreement, vowing “I was elected to represent the citizens of Pittsburgh, not the citizens of Paris”, all that Trump has done is indulge in another symbolic spectacle of solidarity with the white working classes of the Heartland versus the “Global Liberal Elites”. It’s a sequel to the March ceremony where the Donald signed his executive order at EPA headquarters for the agency to “re-evaluate” the Clean Power Plan — he just wants to be able to claim that he did something so he can boast to furloughed coal miners from Somerset, Pennsylvania: “You know what it says, right? You’re going back to work.”
Three years and five months from now, those furloughed coal miners might be very disappointed when they realize that they’re still on furlough — because Trump’s withdrawal from the Paris Agreement was in fact a meaningless gesture which is not going to revive the soot-belching fuel industries of the turn of the last century.
The Paris Agreement is not a treaty — it is a framework by which 195 signatory nations of the world pledged to abide by certain goals of reducing greenhouse gas emissions so as to prevent a catastrophic 2° Celsius rise in global temperature. Each signatory to the Paris Agreement set its own targets; the European Union pledged to reduce greenhouse gas emissions to 40% below 1990 levels by 2030; India pledged to reduce emissions 30 to 35% below 2005 levels by 2030; China pledged to reduce greenhouse gas emissions 60% per unit of GDP by 2030, etc. Then-Secretary of State John Kerry pledged for the U.S. to reduce greenhouse gas emissions by 26 to 28% below 2005 emissions by 2025. Historians may well remember the Paris Agreement as one of the Obama administration’s crowning diplomatic achievements — but it was not in fact an environmental policy per se.
Since the Paris Agreement did not create a supra-national regulatory agency, each party to the Agreement is expected to implement its emissions reduction pledge through its own internal environmental regime. President Xi Jinping announced that the National Energy Commission of the People’s Republic of China will implement a nationwide cap-and-trade program; the Mexican Congress enacted a carbon tax of $3.50 a ton on carbon from coal, oil, and gas; the Canadian Parliament mandated that each province meet steep emissions targets via either a carbon tax or cap-and-trade program. The Obama administration’s primary policy to implement the U.S. pledge of a 26 to 28% reduction in greenhouse gas emissions was the Clean Power Plan — a carbon emissions rule issued by the Environmental Protection Agency.
When EPA Administrator Lisa Jackson issued the 2009 Endangerment Finding on carbon dioxide, according to the Clean Air Act the EPA was then obligated to come up with national ambient air quality standards (NAAQS’s) for carbon pollution for each state and territory. After years of analysis, in 2014 the EPA Office of Air and Radiation proposed and in 2015 finalized the carbon pollution NAAQS’s in what is known as the Clean Power Plan. Each state was obligated to submit by 2016 its own state implementation plan to meet the carbon pollution standards. California enacted policies to reduce carbon emissions by 40% below 1990 levels by 2030; New York has embarked on its own plan to cut carbon pollution 30% by 2030; Massachusetts is going to cut carbon pollution by 25%; Minnesota will cut carbon pollution by 34%, etc. Every state, even states with Republican administrations like Texas and Oklahoma had to submit programs for carbon pollution reduction, even though they did so under protest.
So when Donald Trump tweeted that the U.S. would withdraw from the Paris Agreement, it did not affect the Clean Power Plan in any way. The EPA’s carbon emissions standards issued in 2015 are not based on any treaty obligation — the Paris Agreement is not a treaty — they are based on the authority of the Clean Air Act.
Likewise, Trump’s March 28th executive order directing the EPA to “re-evaluate” the EPA also didn’t actually change U.S. environmental law. Believe it or not, the Clean Power Plan is still the law of the land. If you look up the Federal Register, RIN 2060-AR33 on “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units” is still on the books — which means that it is, in fact, binding law. The EPA’s standards for carbon pollution are still in effect, and every state and territory is still obligated to adhere to them.
States which have submitted their respective implementation plans to the EPA are still bound to comply with such plans under the Clean Air Act. States with liberal governors like California, New York, Pennsylvania, Massachusetts, Connecticut, Maryland, Virginia, Minnesota, Washington, Oregon, Colorado, Hawaii, et al., have announced that they still plan on complying with their respective state implementation plans — even though Scott Pruitt’s EPA won’t enforce them.
At the time of this writing, the only actual change in policy that has happened under the Trump administration is that the federal government is no longer implementing the Clean Power Plan — or any environmental law, for that matter — in any serious way. So even after Republican governors of Michigan, Missouri, and Florida gleefully suspended compliance with the Clean Power Plan upon Trump’s March 2017 announcement, Scott Pruitt’s EPA simply is not going to do anything to enforce it. We are now in a regulatory culture of laissez-faire, akin to The Wire’s Major Bunny Colvin in “Hamsterdam”.
Effectively, for the next 3 ½ years (for God’s sake, hopefully no longer) we are going to have California, New York, a swath of blue states on the East and West Coasts complying with the Clean Power Plan as though Obama never left the Oval Office, and a swath of red states like Texas, Oklahoma, Georgia, Tennessee, Missouri, Indiana, many of the Southern and Midwestern states under Republican governors flout the Clean Air Act with impunity. During this (hopefully short-lived) federalist debacle, EPA officials whose jobs are ostensibly to faithfully execute the laws of the United States simply sitting on their hands like James Buchanan in 1861.
What might happen in the foreseeable future is Scott Pruitt’s EPA will try to exercise its power under the Clean Air Act to issue a new set of carbon emissions rules for each state and territory — a set of ridiculously lax carbon emissions rules which require the states to reduce carbon emissions by some negligible amount like 4 or 5%. It will surely have some obnoxiously nationalist name too: “The Make Great American Jobs for American Workers and Stick It to Those Pathetic Frenchie Losers Plan”.
But the EPA doesn’t just rule by fiat. A new, laxer set of NAAQS’s to replace the Clean Power Plan would be governed by the Administrative Procedure Act and would require abiding by the statutory notice and comment period before going into effect. There will inevitably be a rash of litigation in federal courts from liberal states like California, New York, and Massachusetts challenging the new, laxer NAAQS’s as violations of the Clean Air Act; these cases will be subject to countless appeals, most likely all the way to the Supreme Court.
The litigation challenging Scott Pruitt’s laxer carbon emissions standards will last for years, perhaps well into 2020 or 2021 — or longer. All the while the new rules will probably be subject to stays pending the outcome of the appellate proceedings. Until (and if) the Supreme Court affirms the legality of the Scott Pruitt EPA’s new carbon emissions standards, the Clean Power Plan will remain the law of the land, binding on the states and territories.
Though I shouldn’t head too deep into this rabbit-hole of hypotheticals, speculating on the outcomes of appeals of proceedings challenging a new carbon emissions rule that the EPA hasn’t even issued yet in draft form… Let’s just say that I am deeply, thoroughly pessimistic. These goons have not been very adept at issuing administrative orders that can hold up under judicial scrutiny.
It would be fair to say that, Paris Agreement or no Paris Agreement, the Clean Power Plan is probably going to remain on the books for a lot longer than you might think.
Please don’t misinterpret this article to mean that the U.S. “withdrawal” from the Paris Agreement is perfectly fine — it’s an idiotic self-inflicted foreign policy disaster. Trump has made a foreign policy of shooting spitballs at our most dependable allies and fanning indecent contempt for the opinions of mankind. India, Indonesia, or Vietnam might look to Trump’s deplorable example and pull back from their carbon pollution reduction pledges too.
But the silver lining is that Trump’s “withdrawal” ceremony in the Rose Garden notwithstanding, many of the largest states, representing about half of the U.S. population and half of U.S. GDP, are still on track to reduce their carbon emissions according to the EPA’s Clean Power Plan standards. California (roughly 1/8 of the U.S. population and 1/7 of U.S. GDP) is going to exceed its Clean Power Plan standards and cut its carbon emissions by 40%; New York by 30%; Pennsylvania by 23%, Massachusetts by 25%; Washington by 25%; Minnesota by 34%, etc. The U.S. is responsible for such a disproportionate share of carbon emissions that the planned emissions reductions by even just California and a handful of blue states will be equivalent to the emissions reductions of, say, Canada, Mexico, Brazil, and Argentina.
Even though Republican governors might posture as anti-environmentalists, most red states are still going to reduce their carbon emissions by the sheer market pressures which are forcing merchant utilities to retrofit coal power plants with furnaces to burn cheaper natural gas. The private sector is already shifting to low carbon energy in red states — see the explosive growth of solar power in Arizona, Nevada, and Utah and wind power in Texas, Oklahoma, Kansas, and Iowa. And liberal mayors of major cities in otherwise red states like Houston, Phoenix, Atlanta, St. Louis, Cleveland, and of course, Pittsburgh — where the bulk of the population and economy is located — are also shifting municipal utilities away from coal and gas to renewable energy. Though their carbon emissions will not fall as much as they would if the EPA were to enforce the Clean Power Plan, and they might not fall as a product of official statewide policy, red states’ carbon emissions are still going to fall over the next 20 to 30 years — by a lot.
Without the EPA enforcement of the Clean Power Plan for four crucial years, it might be impossible to meet Secretary of State Kerry’s pledge of reducing carbon emissions by 26 to 28% below 2005 emissions by 2025. But we might come surprisingly close.