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The Paris Agreement – You Can Pull Out, You Can Ignore It, but Here’s What You Can’t Do

US President Donald Trump has made it clear that he is no fan of the Paris Agreement.  After all Candidate Trump repeatedly stated he would “cancel” the Paris Agreement. The Trump Administration has now indicated that the decision on the fate of US participation in the international agreement will come by late May of this year before the G7 conference in Italy. So let’s talk options. The bottom line is this: President Trump likely can withdraw from Paris if he wants, though there are rules and timelines for doing so. He can also stay in Paris but take no domestic action to achieve the United States’ pledge. What he can’t do is submit a new, weaker target and stay in the agreement. You can’t have your pact and break it too.

Even before the election in November, there was discussion about the possibility and implications of a U.S. withdrawal from Paris. While there is some ambiguity in legal precedent, it appears that the President has the authority to withdraw from Paris unilaterally. However, as a Party to the Agreement he would need to follow the Agreement’s provisions, which require that a Party wait until the Agreement has been in effect for three years before withdrawing.  It also requires a years notice, making it 2020 before the exit actually occurs. If that felt too far away, the Trump Administration could potentially withdraw from the underlying agreement, the United Nations Framework Convention on Climate Change (UNFCCC), with only a year’s notice. Though the UNFCCC is a treaty in the true sense of the word, having been submitted to the Senate by President George H.W. Bush and ratified in 1994, Arizona State University’s Dan Bodansky suggests that it is generally held that Presidents have the power to unilaterally withdraw from treaties. However, doing so would have the US watching from the sidelines of not just the Paris Agreement discussions, but the entire multilateral climate process, exposing itself to serious risks, such as a decision by the remaining Parties to call for collective trade measures against non-Parties.

Even without withdrawing from the Agreement, the administration could effectively ignore it. Though efforts to roll back the Obama-era Clean Power Plan would fundamentally undermine the United States’ achievement of its pledge, referred to as a Nationally Determined Contribution (NDC), to reduce emissions by 26-28% below 2005 levels by 2025.  The Paris Agreement was purposely written in such a way that Parties to the agreement, while required to have an NDC, are not required to achieve it. This approach was taken in part so that the United States would be able to join.  While having an NDC with no intention of fulfilling it technically appears to conflict with the Agreement’s provision that Parties “shall pursue domestic mitigation measures” to achieve their NDCs, the Agreement does not have penalties for non-compliance. Thus, while other countries might put political pressure on a US that is not working to meet its promises, there are not likely to be any direct consequences in the context of the Paris Agreement.

Recently, Rep. Kevin Cramer, a key ally and campaign energy adviser to Donald Trump, urged him to reduce the ambition of the United States’ NDC, presenting “a new pledge that does no harm to our economy.” Leaving aside whether actions to achieve the US NDC, such as the Clean Power Plan, harm or help the US economy, the Paris Agreement is structured so that reducing a target without withdrawing is something that cannot be done.  It is not an option. Article 4 of the Agreement states not only that each party shall “maintain successive nationally determined contributions that it intends to achieve” but also that “each Party’s successive [NDC] will represent a progression beyond the Party’s then current [NDC].” While Parties may adjust their NDCs at any time, they can only do so to “enhance its level of ambition.” The gist is this – to be in Paris, you need an NDC.  Once you have an NDC, you cannot submit a weaker one – the ratchet does not go backwards. While former Obama White House climate staffer Paul Bodnar has even suggested that submitting a new target may be a possible alternative for Donald Trump to achieve his goals, this would only align with Paris if it was in some way more ambitious. (Bodnar suggests a more ambitious 2035 target to allow time for technological progress to reduce the cost of mitigation).

This administration will need to decide how it will engage with the Paris Agreement, and it has plenty of options. Will it comply with the agreement, work to change it, or ignore it? The one option it does not have is to lower the U.S. commitment.

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