May 8, 2017

Paris Agreement Does Not Create Litigation Risk for Trump’s Climate Agenda



As the Administration continues to wrestle with whether to stay with or leave the Paris Agreement, one of the key issues is whether staying in creates a legal risk for the Administration’s plans to scrap many of the Obama-era climate regulations. In other words, would the U.S. emissions reductions commitment be a legal barrier to withdrawing any of these regulations?

The short answer is “no.”

I have lost count of the number of times I have sued the federal government over environmental issues, and I can see two ways that a litigant could try to use the Paris Agreement to compel U.S. emissions reductions. Both pathways use the same legal theory, that the Paris Agreement binds the U.S. to meet its pledged emissions reductions (i.e. the “Nationally Determined Contribution, or NDC); they differ only in their procedural mechanism.

First, someone could sue the federal government and seek an order that it comply with the NDC: If the U.S. has to comply with its NDC, then it is obliged to have a regime to accomplish those emissions reductions (maybe the enviros would try to sue under Clean Air Act Section 115). The second way is suing the feds when they try to repeal any existing regulations: if the NDC is binding, the agencies cannot go around scrapping the regulations needed to meet it. This second risk is presumably the one more feared by the anti-Paris forces, since it is easier to stop the Administration from undoing an existing regulatory structure than to compel the Administration to take affirmative steps to do something new.  

Both cases rely on the same preposition: the Paris Agreement binds the U.S. to meet its NDC. But, as even the Agreement’s most vehement critics concede, the NDC’s emissions target is purely aspirational, failure to meet it carries no penalty, and there is no enforcement mechanism by which even other signatories can compel a country to do so. I’ll skip the legal minutiae and put it in its simplest terms: if even other signatories cannot enforce the NDC commitments, neither can anyone else.

Opponents also raise the issue that the Agreement requires the parties to submit ever-more-stringent NDCs. Assuming that this is correct (and there is a legally silly debate about this) the same answer applies. There is no penalty if the U.S. does not submit such an NDC, or if it submits a less-ambitious NDC, or if it chooses not to submit one at all.  And, again, there is no mechanism by which even other signatories can compel the U.S. to do so.  

At heart, the anti-Paris forces seem to think that courts would somehow still be persuaded, as a rhetorical matter, not to allow the Administration to undo any of the Obama climate regulations because of the sheer importance of the Paris Agreement. But that is, literally, of no matter, as the Supreme Court said in the case that started all of this: Massachusetts v. EPA.  

In Massachusetts, the Bush Administration said that the Clean Air Act did not give it the authority to regulate greenhouse gases, but also said that even if it did, it still would not do so for a variety of reasons. And one of those reasons was the effect of such regulation on the President’s foreign affairs power. As EPA argued to the Supreme Court:

Particularly given the complexity and global nature of the climate change issue, it would be inappropriate for a court to set aside the Executive Branch’s judgment as to the likely effects of domestic regulation on its active efforts to encourage the reduction of greenhouse gas emissions in foreign countries—where the vast majority of worldwide greenhouse gas emissions are produced.

The Court, however, would have none of this. Because EPA was acting pursuant to the Clean Air Act, “its reasons for action or inaction must conform to the authorizing statute.”  Any claims about the effect of such regulation on the President’s foreign affairs power – or on other parts of EPA’s “laundry list” of excuses –  was “reasoning divorced from the statutory text.”  

The same principle applies to anyone trying to stop the repeal of any of the Obama-era regulations based on the Paris Agreement. Such plaintiffs would be no more successful invoking the Paris Agreement than EPA was in invoking the President’s foreign affairs powers in Massachusetts: As the Supreme Court made clear, the only legal question is whether the agency’s action complies with the Clean Air Act.