E&E Legal Letters XVI: Paris Treaty Withdrawal Spawns ‘Climate Resistance’ Movement

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by Chris Horner, E&E Legal Senior Fellow and
Chaim Mandelbaum, General Counsel

In June of 2017 President Trump announced that the United States would withdraw from the so-called ‘Paris Climate Agreement’. Paris was illegitimately entered by President Obama given it is, by its own terms, custom and practice, a treaty for United States purposes. This possibly explains why so many nations’ legislatures held ratification votes on it as such. Indeed the President noted the “serious legal and constitutional issues”, and his “obligation and greatest honor to protect” our Constitution, while standing in the Rose Garden on June 1, 2017, announcing his intention to withdraw.

The “not-a-treaty” agreement has always been on questionable legal ground as President Obama’s unprecedented usurpation of the Senate’s role was an ostentatious dare to avoid certain defeat. He rightly banked on the Senate’s inability to rise to the challenge. Yet while the ‘treaty’ did permit nations to voluntarily meet their targets for reductions of CO2 emissions — the first such promise of which Obama made painfully unrealistic — it also requires them to revise those targets in favor of greater reductions, every five years in perpetuity. They must then report their progress, to assist what promoters called a “naming and shaming” campaign.

In announcing that the decision to withdraw, President Trump explained that this agreement would harm American jobs and the US economy to the benefit of global competitors. He indicated that the United States would follow the withdrawal procedure laid out in the pact, which only permits communication of a formal withdrawal three years after the deal takes effect (November 5, 2019), taking effect one year after that, or two days after the U.S.’s 2020 elections.

The President had other options for a speedier termination of the accord, particularly by withdrawing the United States from the United Nations Framework Convention on Climate Change, the organic treaty which other deals, like the Kyoto Protocol (also a treaty), amended. The UNFCCC was signed by the U.S. in 1992 at the Rio de Janeiro Earth Summit and hurriedly ratified. Indeed, Paris represents the inarguable abandonment of the shared understandings which form the basis of UNFCCC and as set forth by our Senate when ratifying it — for example, that any decision of the UNFCCC “Conference of the Parties” (or COP) requires Senate advice and consent to take effect against the U.S.  Paris was the Decision of the 21st Meeting of the COP, and requires targets, to be revised every five years, an obvious timetable.

The U.S. may withdraw from Rio at any time and that takes effect in just one year. Thus had the President chosen to withdraw from the Rio Treaty, it would have terminated US participation in the ‘Paris Treaty’ within a year. He may do so on his own, and this option remains viable.

Immediately after the President’s announcement, a number of left-leaning politicians and organizations began working to counteract the decision to withdraw. The sympathetic press heavily promoted them as having made meaningful pledges, vs. having engaged in political theater with no substance behind it. The cheerleading was echoed by business leaders who had benefitted heavily from the previous administration’s focus on “finally mak[ing] clean [sic] energy the profitable kind of energy”, at the expense of existing American industries.

This criticism from the left has coalesced into two separate campaigns, both of which are little more than websites, if with fairly massive private and 501c3 backing to run their public relations efforts, and all of the staffing that that entails.

The first of these is known as the “We are Still In” movement. “We are Still In” is an effort by a number of green organizations to gather beneficiaries of the booming pot of federal “climate” tax dollars — local governments, businesses and university — to oppose the President’s position. Emails obtained under open records laws show the organization itself is built on top of and run by existing green groups like the World Wildlife Fund, Bloomberg Philanthropies, Ceres, and the Center for American Progress. These groups provided the organizing and outreach efforts to get cities and businesses to sign up, host the websites, provide PR and work with media, etc.

The “We are Still In” movement is principally aimed at getting its signatories to agree to other pet projects of these green groups such as getting businesses to buy electricity from favored renewable energy providers, or getting investors to redirect their investments to preferred sectors. The organization’s purpose is to oppose the decision to withdraw from the Paris treaty, while not committing its signatories to do anything, rhetoric notwithstanding. For example, they do not commit to making up the scores of billions in promised wealth transfers from federal coffers, which now will not come.

The other organization spawned from the President’s announcement is the United States Climate Alliance. Made up of governors of fourteen states and the territory of Puerto Rico, the Alliance promises to uphold their share of the proposed US commitment to greenhouse gas reductions under the Paris treaty (but, again, not to provide the wealth transfers; so, no, none of them are “Still In”). The founding Alliance Governors include Jerry Brown from California, Jay Inslee from Washington and Andrew Cuomo from New York.

The “Alliance” held a press event in mid-September to promote their campaign which in practice simply means promoting the governors’ profiles and touting their ideological agenda. Still, one of the Alliance members, Hawaii, placed its commitment to the Paris Treaty into state law, requiring that the state align with the standards and goals of the ‘treaty’.

Were this Alliance itself in any way substantive instead of a media campaign to elevate the members’ standing and get their international travel and even additional, if off-the-books personnel and public relations advocacy paid for, it would reflect a highly questionable test of the constitutional bounds of their authority.

The Constitution explicitly reserves the conduct of foreign policy to the federal government and bans states from making treaties with foreign nations.  States have, however, long engaged in foreign outreach for economic purposes and have signed partnership agreements and memorandums of understanding with foreign countries and provinces aimed at promoting economic growth. Here, the express claim is to undermine and in some ways even conduct specific foreign policy; the goal is to serve as the “Resistance”, seizing a platform to promote themselves and denounce political opponents at negotiating confabs among nations (without ever actually entering there treaty as parties, of course).

However, despite all of the lofty rhetoric and facially questionable claims of purpose, in the end USCA is merely a vehicle for aspiring politicians to underwrite a PR campaign touting the governors, personally, as “leaders”. It is political. The specifics of how they plan to do this and, according to hints in recent news reports, already are doing this, raise serious legal questions for the elected officials as well as those working in their service. E&E Legal expects to have more to report on this campaign and the the model of political advocacy it represents, in coming months.