May 25, 2017

Examining the Legal Implications of the Paris Agreement



This morning, 22 Republican senators sent President Trump a letter urging him to withdraw from the Paris Agreement because 1) it presents “a significant litigation risk” to EPA’s efforts to withdraw the Clean Power Plan, and 2) it could be used in an effort to compel EPA to begin regulating CO2 under Section 115 of the Clean Air Act.  As evidence of that threat, the Senators quote public remarks I made last year to the effect that the environmental community regarded Section 115 as their “silver bullet de [sic] jour.”¹

First, the Paris Agreement provides no legal hook to argue against EPA’s efforts to withdraw the Clean Power Plan; as I explained recently, no less a case than Massachusetts v. EPA puts the kibosh on that idea.

Second, a silver bullet is “something that acts as a magical weapon; especially: one that instantly solves a long-standing problem.” A silver bullet is not a solution to anything except, we’re told, killing werewolves. I have written that there are not only huge legal obstacles to using Section 115 in the manner envisioned by environmentalists, but even attempting to do so would certainly cause a political frenzy.  

Ironically, by refusing to take action to address global warming, these 22 senators are laying the groundwork for the next Democratic Administration to attempt to use Section 115 in precisely the way they dread. The purpose of my remarks that day was to draw attention to the very real risk of Congressional inaction leading to a future EPA imposing just such a regulatory regime.  As I said at the time:

If 10-12 years from now Congress still has done nothing, and EPA tries a 115 approach, and it gets to the Supreme Court, five justices or more might say, look, Congress has done nothing. The executive branch at least has a statute that they say works and does have a solution to this problem.

So if these senators fear that the Paris Agreement will lead to such an outcome, the best remedy is to preempt that attempt.  Rather than wrest the U.S. out of an international agreement that will be easy to rejoin, they might take action now to get a price on carbon, leaving Section 115 to remain a small and relatively obscure part of the Clean Air Act.

¹  The article erroneously described me as Sierra Club’s former “Chief Counsel”, which I was not; Sierra Club has no such position and, if anyone deserves that title, it is Pat Gallagher, the Director of the Club’s Environmental Law Program.