Breaking news: The Trump White House is not exactly home to the best and the brightest legal minds. This much was clear starting with the first “Muslim Ban,” which courts swiftly struck down, and it’s still the case when it comes to reports about why Trump is poised to pull the U.S. out of the landmark Paris Climate Agreement.
In fact, your future and the futures of generations of people on this planet may come down to how the Trump administration chooses to interpret one sentence in this 25-page international agreement.
Scholars specializing in climate law say one possible way of interpreting the language of the Paris Climate Agreement is actually flat-out wrong. Trouble is, that’s the interpretation that has gained favor at the White House, according to numerous media reports.
Either the Trump administration knows this but is citing it anyway, or the Trump team is getting some seriously flawed legal advice.
Under the terms of the agreement, each country is asked to come up with its own emissions reduction targets. There are no mechanisms for punishing a country if it fails to live up to its pledges.
The problem for the White House is that language in the treaty meant to nudge countries to gradually slash emissions by greater amounts could, in theory at least, be read as prohibiting a country from making its pledges less ambitious.
If this were the case, then the Trump White House would likely ditch the pact altogether, because its policies favor burning more fossil fuels. Withdrawing from the pact would put the U.S. in the company of the few nations that have not yet signed onto it, such as Syria, which is in the midst of a devastating civil war, and Nicaragua, which found the agreement to be too tepid to support.
The Paris Agreement is widely considered to be a vital tool in giving countries a decent chance (though not a sure bet) of preventing the worst-case global warming scenarios.
The pact contains the goal of limiting global warming to “well below” 2 degrees Celsius, or 3.6 degrees Fahrenheit, compared to preindustrial levels by the year 2100.
Any delays in implementing the treaty’s emissions cuts are likely to put its temperature target further out of reach, however.
The provision in question for the Trump administration is known as the agreement’s “ratchet mechanism,” since it is aimed at encouraging countries to make their emissions pledges more stringent over time.
Here’s the exact wording that is giving White House lawyers pause:
“A Party may at any time adjust its existing nationally determined contribution with a view to enhancing its level of ambition, in accordance with guidance adopted by the Conference of the Parties serving as the meeting of the Parties to this Agreement.”
Ok, so that’s a bunch of diplomacy-speak, but the key word in there is “may.”
In international law, “may” is the equivalent of “can.” In other words, this is optional, whereas if the wording used contained “shall,” then it would be mandatory.
The fact that it uses “may” means that any country that is a party to the treaty can adjust its emissions targets in either direction at anytime it wishes to. Nothing in that paragraph encourages countries to move their emissions reduction targets down, because the whole point is to reduce global warming, but nothing prevents it either.
Scholars specializing in climate law were not kind to the White House’s emerging view that the treaty prevents the U.S. from revising its targets to make them more modest.
They also dismissed the administration’s fear, reportedly expressed by Environmental Protection Agency (EPA) administrator Scott Pruitt, that the treaty could be cited in legal challenges to Trump’s environmental agenda. Under former president Barack Obama, the U.S. brought forward a target of cutting emissions by 26 to 28 percent below 2005 levels by 2020, but Trump wants to ease that, since he is in favor of burning more fossil fuels.
Pruitt has already kicked off efforts to roll back Obama’s greenhouse gas emissions reductions for coal-fired power plants.
Michael Burger, the executive director of the Sabin Center for Climate Change Law at Columbia Law School, said the Paris Agreement permits downward revisions of emissions targets.
He also said Pruitt’s concern over court cases is unfounded, since U.S. courts don’t take their cues from international law, but rather from domestic statutes.
“Remaining in the Paris Agreement does not increase domestic litigation risk for the Trump administration,” he said in an email.
“The emissions reduction target is just that — a target. It is non-binding. There is no right to sue to enforce the target in U.S. courts, and there is no right to sue to enforce it in any international tribunal, either,” he said.
“Of course, the Trump administration has a larger problem, here. Climate change is real, and the American public wants action. Moreover, climate change impacts affect people’s lives, livelihoods, health and well-being. It affects people’s fundamental rights. Failing to take action, or taking affirmative actions that leads to violations of people’s rights raises legal problems, regardless of the Paris Agreement,” Burger said.
The debate taking place within the Trump administration has put some who fought tirelessly to draft and pass the agreement in the first place in an odd position. For example, Laurence Tubiana, who served as the French government’s special representative to the Paris talks in 2015, tweeted on Thursday morning that Trump would still be complying with the Paris Agreement even if he submits a new, less stringent target.
To make my point clear.Of course US government CAN legally downsize its contribution but SHOULD Not. https://t.co/Eyko2ULgIT
— Laurence Tubiana (@LaurenceTubiana) May 4, 2017
Others who want the U.S. to remain a party to the treaty are also trying to get their message out, including Democratic governors, who wrote to the White House on Wednesday.
Paula Caballero, who directs the climate program for the nonpartisan World Resources Institute in Washington, warned of damaging consequences for the U.S. and the world if Trump were to pull the country out of the agreement entirely. She said the legal arguments put forward so far amount to a smokescreen.
“Those urging the US to withdraw from the agreement have manufactured a misleading debate over whether the terms agreed to in Paris could be used to challenge the administration’s plans on climate change,” she said.
Caballero called the legal debate: “A tactic to cover what is at its heart purely a political decision,” and warned of harsh consequences to come from countries that are sticking with the treaty.
“Walking away from the agreement would be a dark stain on the president’s legacy that he would never be able to wash out,” Caballero warned.