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Trump’s So-Called Withdrawal from Paris: Far From Over

 

On Thursday, President Trump announced his intent that the United States “withdraw” from the Paris Agreement, the landmark climate change treaty that establishes national greenhouse gas emission reduction targets. If the United States were actually to exit the Agreement, it would not only jeopardize humanity’s best chance at preventing global climate disaster, but also disadvantage the United States’ status in the international economic order. Thankfully, President Trump’s rhetoric launched little meaningful legal action—for the simple reason that we’re still a part of the Paris Agreement until after the next presidential election.

International law makes clear that U.S. presidents cannot simply delete signatures like the one on the Paris Agreement. The U.S. entered into the Paris Agreement under the full force of the law, and the global community can only recognize withdrawal under the terms specified in the agreement text. Article 28.1 of the Paris Agreement states a party cannot give notice of withdrawal to the U.N. Secretary General until “three years from the date on which this Agreement has entered into force.” Since the Paris Agreement entered force on November 4, 2016—mere days before Trump’s election—the earliest date that the U.S. could even give such legal notice would be November 4, 2019. That notification would then take a year to enter into effect, meaning that Trump cannot legally withdraw the U.S. from the Agreement until November 4, 2020, the day after the next U.S. presidential election.

In the meantime, it is not clear what legal meaning Trump’s withdrawal announcement really has.  We were in arrears of our United Nations dues for many years, but eventually came back into compliance.  President George W. Bush demonstrated the futility of announcing a withdrawal under terms not designated by an international agreement when he tried to “unsign” the Rome Statute, which established the International Criminal Court. The “unsigning” letter his administration sent to the U.N. had uncertain effect under customary international law, the U.S. signature remains on the Rome Statute, and the United States reengaged with the Rome Statute during the eight years of the Obama Administration.

While we remain a party to the Paris Agreement over the next three-plus years, President Trump may not care if his actions legally comply with the Agreement—but as a country, we should. President Trump claims withdrawal “represents a reassertion of American sovereignty,” but he has just surrendered our influence over the agreement to China and BRICS.  Like NAFTA, Trump claims that he will “renegotiate” a better agreement, but what incentive do the other State parties have to renegotiate a weaker agreement with an American Administration that is flailing and may not be in office when the time comes to complete its withdrawal?

So while this decision is an egregious self-inflicted wound, as Yogi Berra liked to say, it ain’t over till it’s over.  Because the United States will still belong to Paris until after the next election, there is no reason to treat Trump’s announcement yesterday as either definitive or final.

Put another way, the Trump Administration does not own our climate policy. The environmental community and the global commitment to clean energy are far bigger than Donald Trump, whose administration remains visibly divided on this issue and who has personally demonstrated little meaningful commitment or capacity to carry through with any his public statements.

Even as the Trump administration risks the lives of our planet’s most vulnerable citizens, widespread support for climate change solutions continues to rise from cities, states, provinces, and businesses. Through the Under2 MOU coalition, states, provinces, regions, and cities have pledged the common goal of reducing greenhouse gas emissions to 80-95% below 1990 levels by 2050. Similarly, through the Compact of Mayors, 600 cities have pledged to reduce greenhouse gas emissions by nearly one billion tons annually by 2030.

Businesses have also seized the important opportunity to address climate change and support the Paris Agreement. The Breakthrough Energy Coalition, pioneered by Bill Gates, will invest $1 billion in companies that provide affordable clean energy. Through the We Mean Business Coalition, 471 companies with over $8 trillion in market capitalization have undertaken more than 1000 climate action commitments. For this same reason, hundreds of major companies and investors, including DuPont, eBay, Nike, Unilever, Levi Strauss & Co., Hilton, Adobe, Apple, Facebook, Google, and Hewlett Packard have publicly urged President Trump to remain in the Paris Agreement. Even oil and gas companies—including Shell and Exxon Mobil—have endorsed remaining in the agreement. President Trump claims his job is to give America “a level playing field” and that the Paris Agreement would provide other countries with “an economic edge” over the United States, but business leaders have agreed that future economic prosperity is best advanced by remaining in the Paris Agreement.

These actions are real while Trump’s Rose Garden speech yesterday has as much legal force as one of his tweets. The global community can just keep doing what it is doing, disregard as legally meaningless the Trump administration’s claimed “withdrawal” from the Paris Agreement, and instead look to these subnational and business leaders’ delivery of the greenhouse gas emission reductions pledged by the U.S. under the Paris Agreement. Already, the Governors of California, New York, and Washington have formed the United States Climate Alliance, a coalition that will bring together U.S. states to uphold the Paris Agreement and take further climate action.

The global community can fight to keep Paris, and the rule of law, for four more years. Trump’s policies and credibility are fraying on many fronts, and when all is said and done we expect that this so-called withdrawal will be just another of them. The lesson from yesterday is: keep calm and carry on.  This is just the start of the next phase of a public discussion of an issue that is and will continue to be critical to the future of our children and our children’s children. Only time and concerted effort will tell whether, despite Donald Trump’s rhetoric, we’ll always have Paris.

 

Image: As directed by New York Governor Andrew Cuomo in response to President Donald Trump’s announcement on the Paris Climate Accord, One World Trade Center is illuminated with green light, June 1, 2017 – Drew Angerer/Getty

 

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About the Authors

is Sterling Professor of International Law, Yale Law School; Legal Adviser, U.S. Department of State (2009-13); Assistant U.S. Secretary of State for Democracy, Human Rights and Labor (1998-2001).

is a JD student at Yale Law School (class of '17) and an M.E.M. candidate at the Yale School of Forestry & Environmental Studies (class of '17).

is a JD student at Yale Law School (class of '17) and an MBA candidate at the Yale School of Management (class of '17).

is a JD student at Yale Law School (class of '17).

is a JD student at Yale Law School (class of '17).

is a JD student at Yale Law School (class of '17).