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Jan 28, 2016
Daniel Carpenter-Gold is Managing Editor of Harvard Environmental Law Review.This post is part of the Environmental Law Review Syndicate.
It’s done. Like a reluctant Odysseus, we have fastened ourselves to the mast of emissions reductions with Bungee cords (not too tight, now!) and stuffed one ear full of wax—just in case those cheap, dirty fossil-fuel Sirens have something interesting to say. But what is this “Paris Agreement”?
After some initial optimism, debate over the outcome document has been mostly about precisely what flavor of evil the negotiators have handed us. There are interesting framing moves in the document—the target for a cap on temperature increases is being nudged down from 2°C to 1.5°C, the net-zero “carbon neutrality” approach makes carbon sinks and carbon-capture technology more prominent, and the $100 billion promised in the Copenhagen Accord ended up in the non-binding Paris Decision rather than the Agreement itself—but the real action is in Art. 4, dealing with Nationally Determined Contributions (“NDCs”).
Since Luke Grunbaum at the UCLA Journal of Environmental Law & Policy has already put out a great breakdown of the NDC approach, I’ll keep it short: the NDCs are statements from each country (or group, in the case of the EU) laying out how much they will decrease their greenhouse gas emissions. Unlike the Kyoto Protocol, the Paris Agreement does not require specific emissions reduction from each country. Instead, Art. 4.9 requires each nation to issue an NDC every five years, and Art. 4.3 demands that each new NDC “will represent a progression beyond” the country’s previous commitment. (NDCs are also supposed to represent each country’s “highest possible ambition”—which raises the question whether countries might overpromise and get stuck with an unattainable goal. Then again, overly ambitious goals have not historically been a problem for the UNFCCC.)
Nearly all UNFCCC parties submitted Intended NDCs (“INDCs”) prior to the Paris negotiations, so we already have an idea of what NDCs will look like. The first impression is that they are too little, too late, but this is not news (which the head of the Secretariat made clear by threatening to “chop the head off” of any reporter that treated the INDCs’ shortcomings as new information). For our part, the U.S. INDC has promised a 26–28% reduction in greenhouse gas emissions by 2025 (measured against 2005 levels), which is roughly equivalent to the 32% reduction by 2030 that the White House says the Clean Power Plan will provide.
This is the meat of the Paris question: will President Obama’s signature on the Paris Agreement change anything back home?
As anyone who takes the law seriously knows (and as I just looked up), international agreements make take one of three forms: treaties, requiring “the advice and consent” of two-thirds of the Senate; “congressional-executive agreements,” in which Congress uses its legislative powers to enact (typically, to pre-approve) whatever arrangement the President comes to with other countries; and what are called “executive agreements,” which are agreed to by the President, but neither ratified by the Senate nor enacted into law by Congress. Needless to say, the chances of getting Congress to agree on anything climate-related are slim—so we are for the foreseeable future left with executive agreements.
The thing about executive agreements is that their impact on domestic law (as opposed to international law) is limited by the Constitution. The federal government must act pursuant to a grant of power, after all, and while the President is blessed with certain authorities (including the right to appoint U.S. diplomats and to “receive Ambassadors and other public Ministers”), the executive’s powers do not include the authority to make laws.
One preexisting source of authority for implementing the Paris Agreement is the UNFCCC itself, which was ratified by the Senate in 1992. However, the Bush (Sr.) Administration very specifically intended that any protocol to the UNFCCC “containing targets and timetables” for greenhouse gas emission reductions would require its own ratification process, and the report of the Senate Committee on Foreign Relations made this understanding explicit in reporting the treaty. Because the Senate’s initial ratification of the UNFCCC was based on this promise, any future binding emissions limits will likely have to go through the process again, even if they are technically made pursuant to the UNFCCC.
But presidential authority also encompasses powers that Congress has already delegated to the executive branch, including the authority to implement the Clean Air Act. And under Massachusetts v. EPA, the CAA authorizes regulation of greenhouse gases, meaning that the President has authority to fulfill the terms of any climate agreement that remains within the bounds of the CAA’s grant of authority. (An interesting alternative argument is that EPA also has authority to impose limit greenhouse gas emissions through CAA § 115 on “International Air Pollution”—David Wirth breaks this down in his recent Harvard Environmental Law Review article “The International and Domestic Law of Climate Change: A Binding International Agreement Without the Senate or Congress?”)
So the executive branch can implement the INDC on its own—in fact, the U.S. INDC appears to rest entirely on authority already in place—but neither domestic nor international law requires it to do so. And this means that there will be essentially no legal avenue for holding future administrations accountable to the promises made now.
The Paris Agreement, on its own terms, does not require specific actions on the NDCs, or impose any sanction on countries that do not meet them. Art. 4.2 provides that “Parties shall pursue domestic mitigation measures with the aim of achieving the objectives” in their NDCs (my italics). There are a handful of mechanisms for checking up on countries’ progress—most importantly, a “global stocktake” in 2023 and every five years afterward (Art. 14), and an “enhanced transparency framework” for the NDCs and financial commitments (Art. 13)—but there are no actual punishments for failing to follow-up on the NDCs. In fact, the only provision to “promote compliance” with the Paris Agreement is specifically required to be “non-punitive.”
Furthermore, the U.S.’s NDC, which (unlike, say, the EU’s) does not purport to be a binding commitment and commits to almost no mitigation work beyond the Clean Power Plan. So the Paris Agreement essentially amounts to promising to continue doing what we’ve already started—which, given the scope of the Clean Power Plan and the resistance to it, may be all we’re capable of anyway.
As all climate reporting must, this piece ends with more questions than it started. What will the 2020 NDCs look like? Will China’s cap-and-trade program work? Will the Clean Power Plan survive litigation, or the change in administration? Will private industry come through with a silver-bullet plan? Will the revolution come? It’s been said before, but the Paris Agreement can only be a platform, supporting and magnifying domestic actions.