President Donald Trump’s day one E.O. titled “Putting America First in International Environmental Agreements” combines provisions that are straightforward, inconsistent with international law, and somewhat mysterious.
Beginning with the straightforward, the E.O. calls for the United States to withdraw from the Paris Agreement. This action was previewed during the campaign and was in any event predictable. It is reminiscent of the June 1, 2017, announcement of the first Paris withdrawal. However, at least two distinctions are worth noting:
- Whereas the 2017 withdrawal announcement appeared to leave open a potential Paris window (signaling willingness to “negotiate our way back into Paris”), the E.O. provision appears absolute.
- Another distinction is the timing. Article 28 of the Paris Agreement provides that a Party may notify of withdrawal only after the Agreement has been in force for that Party for three years. Withdrawal takes effect one year after notification. In 2017, although the political announcement of future withdrawal could have been made at any time, the United States needed to wait until November 4, 2019 (three years after Paris’ entry into force for the United States) in order to formally notify of withdrawal. This time, having rejoined the Agreement in February 2021, the United States is able to notify right away.
The E.O. provision that jumps out as inconsistent with international law is the one stating that the United States “will consider its withdrawal from the Agreement and any attendant obligations to be effective immediately upon this provision of notification.” As noted, it takes a year from notification of withdrawal for a Party to actually withdraw from the Agreement. Thus, as a matter of international law, the United States will continue to be a Party to the Agreement, with any attendant obligations, for a year after notification of withdrawal. I leave to others whether the provision also raises an issue under U.S. law. It should be noted that the E.O. provides that it is to be implemented “in a manner consistent with applicable law…,” which may have a bearing on the effectiveness of this provision.
The somewhat mysterious provision calls for U.S. withdrawal from “any agreement, pact, accord, or similar commitment made under the United Nations Framework Convention on Climate Change.” It seems clear that the United States is not withdrawing from the Framework Convention itself, but, beyond that, it is unclear precisely what this provision is meant to cover.
- The Kyoto Protocol was an “agreement” adopted under the Convention but the United States never joined it.
- The Copenhagen “Accord” was never formally adopted under the Convention and, in any event, has been overtaken by events.
- And various international climate initiatives that the United States joined, even if they contain U.S. commitments, were not “made under” the Convention; they stood outside the regime.
For a “similar commitment” to be covered, it would presumably need to be not only a “commitment” made under the Convention but also significant (or it would not be “similar”) and, of course, still temporally relevant. For example, the U.S. emissions target included in the 2010 Cancun outcome was arguably a “commitment” (albeit not legally binding), but its 2020 date makes it no longer of relevance. Perhaps this section of the E.O. could be read to cover a provision of the decision of the Parties under the Convention that was adopted alongside the 2015 Paris Agreement, in which developed countries politically committed to extend their existing collective finance mobilization goal through 2025. While such a collective commitment would not be subject to “withdrawal” in the same sense as a Party might withdraw from an international agreement, the United States could indicate its intent not to participate in that collective goal in its remaining year.
The E.O. also addresses climate-related finance. It rescinds the 2021 U.S. International Climate Finance Plan, directs OMB to issue guidance for the rescission of all “frozen funds,” and calls for relevant U.S. government officials to “cease” or “revoke” any purported financial commitment made by the United States under the Framework Convention. In terms of the last category, this might include the decision to extend through 2025 the collective commitment of developed countries to extend the $100b mobilization goal noted above.
The E.O. sets out policy with respect to future agreements. Broadly speaking, it calls for putting U.S. interests first when negotiating any international agreements “with the potential to damage or stifle the American economy.” Concerning energy agreements in particular, the Administration is to prioritize economic efficiency, the promotion of American prosperity, consumer choice, and fiscal restraint in all foreign engagements that concern energy policy.
Finally, it should be noted that the reasons behind the two Paris withdrawals differ somewhat in emphasis and tone.
- The 2017 reasoning was decidedly more strident, e.g., Paris imposes “draconian financial and economic burdens,” “punishes” the United States, “hamstring[s] our workers,” “weaken[s] our sovereignty,” and “impose[s] unacceptable legal risks.”
- The somewhat milder E.O. suggests that the Paris Agreement does not reflect “our country’s values or our contributions to the pursuit of economic and environmental objectives” and steers U.S. finance assistance to countries that either do not need it or do not merit it.
The differences could be the result of comparing a political speech with an executive order and/or the fact that the E.O.’s verbiage relates to environmental agreements more broadly, not Paris in particular. In any event, it is notable that the common theme of economic impact was an issue that the United States specifically addressed when developing the Paris Agreement. Taking to heart the Senate’s 1997 “Byrd-Hagel Resolution” (which cautioned against sending up any climate agreement that would harm the U.S economy) and the subsequent U.S. rejection of the Kyoto Protocol, the United States proposed and achieved a Paris Agreement architecture that permits each Party to design its own emissions commitment (an aptly named “nationally determined contribution”) which furthermore is not legally binding and can be altered even after its submission. Thus, as was the case last time, it would have been an option for the new Administration to remain in the Paris Agreement and revise the U.S. target in a manner it found economically acceptable.