Jan 2017. Climate Law and Policy and Lexis PSL COP21 logo

Environmental concerns and the future of the Paris Agreement

Sebastien Korwin, a senior legal and policy advisor at Climate Law and Policy, warns that President Trump’s declared intention to withdraw from the Paris Agreement only reinforces the fear that the US will be more of a hindrance than a help in the fight against climate change.

What environmental issues will Donald Trump prioritise in the early days of his Presidency - e.g. infrastructure expenditure, deregulation of oil exploration - and what is likely to be the impact of these? Any other interesting trends or developments stemming from Trump’s administration that could affect the environment?

Throughout his election campaign Donald Trump made a number of statements that provided clues on the steps his administration could take with regard to the environment and, more specifically, environmental legislation. In a televised address outlining his policy plans for his first 100 days in office, he pledged to cancel funding for climate change programmes, vowed to revive the coal industry and lift restrictions on drilling for fossil fuels on federal lands to encourage an increase in shale, oil and natural gas production. Myron Ebell, a key member of Trump’s transition team, also outlined some of Trump’s plans for the United States Environmental Protection Agency (EPA), which include limiting the regulation of power plants and revising the rules on developing crucial ecosystems such as wetlands.

Trump’s cabinet nominations support this general position, with picks that include Rex Tillerson, CEO of ExxonMobil for Secretary of State, climate change denier Rick Perry for Department of Energy and Ryan Zinke, who has questioned the extent of humanity’s role in causing climate change, for Department of the Interior. His proposed attorney general, Senator Jeff Sessions has come under scrutiny for failing to disclose that he leases land to an oil company. Scott Pruitt, Trump’s pick for administrator of the EPA (a key sub-cabinet position), has actually been involved in 14 lawsuits against the EPA while Attorney General of Oklahoma, including an attempt to revoke the Clean Power Plan.

Since his inauguration on 20 January 2017, President Trump has issued his “America First Energy Plan”, which amongst others things commits to eliminating Obama’s 2013 Climate Action Plan. He has also recently signed executive orders to ‘facilitate the expeditious review’ of the permit application for the Keystone XL and Dakota Access pipelines, which had previously been put on hold by the Obama administration following major public protests.

The Trump administration has also taken some drastic measures at the EPA, including:

• the recent statement by Doug Ericksen, the communications director for Donald Trump’s transition team at the EPA, that all future studies or data from scientists at the EPA must undergo review by political appointees before they can be released to the public
• the imposition of a media blackout
• a temporary suspension of all new business at the department, including the provision of grants (such as those that support environmental testing and innovation projects) and contracts (such as hazardous waste handling and drinking water quality testing)

This apparent trend of prioritising commercial (in particular fossil fuel) interests over environmental regulation are major causes for concern, not only in terms of CO2 emissions, but also for the US environment as a whole. For instance, 7 million gallons of crude oil were spilled in more than 1,000 pipeline leaks between 2010 and 2015 alone (see High Country News, 15 June 2015). The watering down of environmental regulations and the limits being placed on the EPA are only likely to increase these occurrences.

President Trump declared during his campaign that he would seek to repeal the Paris Agreement. What would the US’s withdrawal mean for the Paris climate change agreement in general? Could it have a domino effect?

During his campaign, Donald Trump made statements that climate change is not happening or is a hoax perpetrated by China. His declared intention to withdraw from the Paris Agreement only reinforces the fear that the US will be more of a hindrance than a help in the fight against climate change. It has since been reported that President Trump is preparing to sign two executive orders, one to drastically reduce the US’s role in the United Nations and the other, entitled “Moratorium on New Multilateral Treaties”, calls for a review of all current and pending multilateral treaties and to consider which ones the US should leave (see “Trump Prepares Orders Aiming at Global Funding and Treaties”, New York Times, 25 January 2017). The scope of the order is intended to include all multilateral treaties that are not ‘directly related to national security, extradition or international trade’, which will likely include the Paris Agreement.

It is unlikely however, that even the withdrawal of the US would spell the end for the Paris Agreement. During the 22nd United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties (COP) held in Marrakesh in November 2016, the Chinese vice-foreign minister Liu Zhenmin made it clear that a US withdrawal would not deter China from supporting either the climate negotiations nor the implementation of the Paris Agreement.

While the withdrawal of US support (in particular, funding to poor and vulnerable countries to mitigate and adapt to climate change), would hinder efforts to implement the Paris Agreement, the willingness of major players such as China and the European Union to collaborate to drive coordinated climate action forward means that it will not suffice to kill the Agreement entirely, nor is it likely to cause a domino effect of withdrawals.

How realistic is this withdrawal and is it likely to face congressional opposition?

Trump has recently stated that he now has an ‘open mind’ with regard to US involvement in the Paris Agreement and Secretary of State Rex Tillerson told the Senate Committee on Foreign Relations during his confirmation hearing that the US should ‘maintain its seat at the table’ in the climate negotiations. He also said that the threat of global warming is real, that it ‘requires a global response’ and that ‘no one country is going to solve this on its own’.

Following the November 2016 elections, the Republican Party now has majorities in both the Congress and Senate, and has publicly declared its opposition the Paris Agreement. The degree of congressional opposition to an attempt by the Trump administration to withdraw from the Agreement would therefore depend on the Democrats. It has been argued that leaving the agreement will be simple because it hasn’t been ratified by the Senate, though in reality it may not be so simple (see “Could Trump Simply Withdraw US from Paris Climate Agreement?” Scientific American, 10 November 2016).

The Paris Agreement officially entered into force on 4 November 2016, which according to its Article 28 means that any party seeking to withdraw from it must wait three years following its entry into force to communicate their intention to withdraw. Even then the withdrawal would only take effect one year after that (for a total of four years). It has however, been argued that the US could simply withdraw from the UNFCCC altogether, which would only take one year according to Article 25 of the United Nations Framework Convention on Climate Change. As the UNFCCC is the Framework agreement, withdrawing from the Convention would also result in withdrawal from the Paris Agreement.

Could the UK, buoyed by its commitment to pursue a hard Brexit, follow suit?

In July 2016, the Prime Minister Theresa May abolished the Department for Energy and Climate Change (DECC) and merged it with the department of Business Innovation and Skills (BIS) to form the new Department for Business, Energy and Industrial Strategy, causing concern that action on climate change may be moved down the list of government priorities.

However, the UK government ratified the Paris Agreement on 18 November 2016, suggesting that Mrs May’s government intends to continue playing a role in the multilateral negotiations. Nick Hurd, Minister of State for Climate Change and Industry, was quoted as saying that ‘The UK is ratifying the historic Paris Agreement so that we can help to accelerate global action on climate change’ and that the government would ‘use this positive momentum to grow the UK low-carbon sector’ (at COP 22). It is therefore unlikely that Brexit would lead to the UK withdrawing from the Paris Agreement. On the contrary, continued diplomatic engagement in the UNFCCC would cement the UK’s position as a sovereign player, separate from the EU.

Could a UK/US trade deal prove harmful to the environment, i.e. if it results in fewer restrictions and regulations being placed on UK/US products and services?

There is no short or simple answer to this question, however, looking at the negotiations of relevant trade deals, including the Transatlantic Trade and Investment Partnership (TTIP), can provide insights as to why commentators are concerned. Following a leak by Greenpeace of 13 Chapters of the draft TTIP, it emerged that significant areas of EU legislation including on energy efficiency labels, public procurement policies, the regulation of unconventional fossil fuel extraction, on the regulation of toxic chemicals etc. have been identified by negotiators as “technical barriers to trade” to be removed. It is likely that UK/US free trade negotiations would lead to similar conclusions by US negotiators and could also lead to them calling for these “technical barriers to trade” to be removed.

Under WTO rules, states have the right to take measures to protect ‘human, animal and plant life or health’ or for the ‘conservation of exhaustible natural resources’ without these being considered breaches of free-trade rules. However, the US in all its free trade negotiations (including the North American Free Trade Agreement, TTIP, Trans-Pacific Partnership as well as its bilateral trade agreements) has insisted on the inclusion of Investor-State-Dispute-Settlement (ISDS) clauses, which grant foreign investors (i.e. US companies) the right to sue states if they believe that laws or measures of or any partner are likely to damaged their investments and reduce their expected profit. Recently these clauses have been called upon by investors facing environmental regulation around the world, resulting in huge legal costs for states. An example is the US Lone Pine energy company using the NAFTA ISDS provisions to sue the provincial government of Quebec for approximately $120 million because it suspended shale gas mining pending an environmental study in response to community concerns (ref. Lone Pine Resources Inc. v Government of Canada). It is likely that such clauses would be included in any future US/UK, thus potentially undermining any future UK environmental legislation.

Sebastien Korwin is an environmental lawyer working on international environmental policy and law in the areas of climate change, biodiversity, forest governance, REDD+ and human rights.

Climate Law and Policy (CLP) is an independent advisory organisation that helps design, implement and sustain environmental governance advancements.

Interviewed by Kate Beaumont.

This article was first published on Lexis®PSL ​Environment analysis on 30 January 2017.