Trump must get the US out of the Paris Agreement the right way this time – ‘Assert that Paris is indeed a treaty’ & ‘send it to the Senate’ for ratification
If Donald Trump wins the presidency for a second term, one of the very first things he should do when he enters office is again kill US participation in the Paris Agreement on climate change. Only this time, he should do it the right way. Trump should assert that Paris is indeed a treaty, just as the United Nations Framework Convention on Climate Change (UNFCCC) specifies and all other nations treat it, and so send it to the Senate where, like any other treaty, it needs 2/3 of the Senate supporting it for it to be ratified in the US.
Then Trump can sit back and simply say that until the Senate votes in support of Paris, America is no longer in it. The Senate will never get a 2/3 majority in support of Paris; that will be the end of the story. America is out of the Paris Agreement and Trump didn’t have to do anything at all, other than forwarding it to the Senate as should have been done in the first place.
This is by far the most effective and risk-free approach the new president can take, resulting in the least political blowback. President Barrack Obama did not submit the Paris Agreement to the Senate because he knew it would not pass muster there. So he tried to convince us all that it is really an executive agreement, not a treaty, and so the US could be tied into it simply on Obama’s authority alone. That is nonsense, of course, but it is the trick Obama, and later Biden, used to get the US into Paris without Senate approval.
In past articles, I have advocated that Trump really should pull the US out of the treaty that underlies Paris, namely UNFCCC, signed by President George H. W. Bush and other world leaders at the Earth Summit in Rio de Janeiro in 1992. It is important to note that the UNFCCC treaty was also ratified in the Senate by voice vote. GOP opponents of the treaty did not ask for a recorded vote because they felt they were going to lose overwhelmingly. They also did not ask for a recorded vote because Bush signed the treaty, and by September 1992, his re-election was doubtful. A handful of GOP senators voting no would have made their own president look bad and also opened them up to attacks that they were hurting Bush’s re-election chances. Because there is no record of opposition, the UNFCCC appears to have had wide support at the time.
That doesn’t mean Trump can’t withdraw the US from the UNFCCC. According to the treaty’s withdrawal clause, any country that wishes to quit the agreement has to wait three years from the date on which it came into force, March 21, 1994, to officially notify the United Nations, with the withdrawal to take effect one year later. So, Trump could announce US withdrawal from UNFCCC right away and be out one year later.
Once a signatory exits the UNFCCC, they are out of all agreements that are based on the treaty. This includes the Green Climate Fund (which has a target of $100 billion a year transferred from developed to developing nations for climate actions) and the 2013 “Warsaw International Mechanism for loss and damage associated with climate change impacts,” under which developed nations are held to a potential liability of trillions of dollars for the impact of extreme weather events that are supposedly our fault. The Paris Agreement would also be nullified for the US were Trump to pull out of the UNFCCC. Indeed, Article 28 of the Paris Agreement states point blank:
“Any Party that withdraws from the Convention [namely the UNFCCC] shall be considered as also having withdrawn from this Agreement.”
Besides the dubious science underlying the treaty, Trump would have good justification for withdrawing from the UNFCCC (and, of course, Paris). In 1997, the US Senate voted 95-0 against accepting agreements in which developing countries are not held to similar standards as America. Led by the late Senator Robert Byrd (D-WV), congressional representatives from across the aisle agreed in the Byrd-Hagel Resolution that:
“The United States should not be a signatory to any…agreement regarding the UNFCCC of 1992, at negotiations in Kyoto in December 1997, or thereafter, which would mandate new commitments to limit or reduce greenhouse gas [GHG] emissions…unless the …agreement also mandates new specific scheduled commitments to limit or reduce greenhouse gas emissions for Developing Country Parties within the same compliance period.”
Everyone recognized that the Kyoto Protocol, then under development, would not satisfy Byrd-Hagel since emission limits only applied to developed countries. That is why the Clinton administration never submitted Kyoto to the Senate for approval, a step required by the Constitution for international treaties.
However, withdrawing from the UNFCCC has its risks for President Trump. For one thing, a future President could get America back in by sending it to the Senate, where it would probably again get more than the two-thirds vote necessary to pass. And, based on the current logic that Paris is an executive agreement, the US would automatically be back in Paris, too, with a presidential signature. So, all in all, it appears that the best route is to follow the UNFCCC that Paris is indeed a treaty and send it to the Senate, where it dies.
President Biden, treating Paris as an executive agreement, not a treaty, signed the instrument to rejoin the Paris Agreement on his first day in office, January 20, 2021. In contrast, Trump waited a year and a half before exiting the Paris Agreement the first time, and even then, he did so a way so as not to alienate family members and others in his administration who wanted the US to stay in, saying:
“In order to fulfill my solemn duty to protect America and its citizens, the US will withdraw from the Paris climate accord…But begin negotiations to re-enter either the Paris accord or an entirely new transaction on terms that are fair to the US, its business, its workers, its people, its taxpayers.
‘So we are getting out. But we will start to negotiate and we will see if we can make a deal that’s fair. And if we can, that’s great. And if we can’t, that’s fine.”
He continued later in the announcement:
“I’m willing to immediately work with Democratic leaders to either negotiate our way back into Paris, under the terms that are fair to the United States and its workers, or to negotiate a new deal that protects our country and its taxpayers.”
Of course, there is no agreement — not Kyoto, not Paris, nothing — based on the UNFCCC that can be fair to the US, or indeed any developed nation. This is because it is not necessary for developing nations to meet their Paris emission goals at all. They have an out-clause, one not applicable to developed countries. Article 4 in the 1992 UNFCCC states:
“Economic and social development and poverty eradication are the first and overriding priorities of the developing country Parties.”
Actions that significantly reduce carbon dioxide (CO2) emissions would usually entail dramatically cutting back on the use of coal, the main source of most of the developing world’s electricity. As coal is generally the least expensive source of power, reducing CO2 output by restricting coal use would undoubtedly interfere with development priorities. So, developing countries almost certainly won’t do it, citing Article 4 of the UNFCCC as their excuse. President Rodrigo Duterte of the Philippines (which generates 61% of its electricity using coal) gave us a preview of what we should expect when he said in 2016:
“You are trying to stymie [our growth] with an agreement … That’s stupid. I will not honor that.”
Some commentators have speculated that the inclusion of a new phrase in the 2014 UNFCCC Lima decision, that countries’ responsibilities will be decided “in light of different national circumstances,” will somehow impose tougher requirements on poor nations over time as they develop (non-OECD countries are now the greatest source of energy-related CO2 emissions). This is naïve. The UNFCCC base treaty, especially Article 4, which addresses the preferential treatment given to developing nations, has been the foundation of all UN climate negotiations. Developing countries will clearly not allow this to change anytime soon. For example, Associated Press JP Karl Ritter wrote in his December 15, 2014 piece, “Last minute deal salvaged UN climate talks,”
“Asked about the implications of the Lima deal, Chinese negotiator Su Wei repeated China’s mantra that the purpose of the Paris agreement is to ‘reinforce and enhance’ the 1992 convention, not rewrite it.”
China, which is still considered a developing country by UN climate officials, gets nearly 60% of its electricity from coal-fired power stations.
In an ideal world, Trump would indeed pull America out of the whole UN climate mess by withdrawing from the UNFCCC. However, he would likely pay a significant political price to do so, impeding his chances of success in other parts of his agenda. So, this time around, as America’s 47th president, Donald Trump should immediately send the Paris Agreement to the Senate for its approval, as required by the Constitution, where it would inevitably die.
Tom Harris is the executive director of the Ottawa, Canada-based International Climate Science Coalition.