The Legal and Economic Case Against the Paris Climate Treaty Canceling U.S. Participation Protects Competitiveness and the Constitution By Christopher Horner, Esq. and Marlo Lewis, Jr., Ph.D. ISSUE ANALYSIS 2017 NO. 6 May 2017 The Legal and Economic Case Against the Paris Climate Treaty Canceling U.S. Participation Protects Competitiveness and the Constitution By Christopher C. Horner, Esq. and Marlo Lewis, Jr.,Ph.D. Executive Summary should make the case for withdrawal based on the President Trump should keep his two-part campaign following key points: promise to cancel U.S. participation in the Paris 1. The Paris Climate Agreement is a treaty by Climate Agreement and stop all payments to United virtue of its costs and risks, ambition compared Nations global warming programs. The Paris Agreement to predecessor climate treaties, dependence on is a costly and ineffectual solution to the alleged climate subsequent legislation by Congress, intent to crisis. It is also plainly a treaty, despite President affect state laws, U.S. historic practice with Obama’s attempt to implement it without the Senate’s regard to multilateral environmental agreements, advice and consent. Failure to withdraw from the and other common-sense criteria. agreement would entrench a constitutionally damaging precedent, set President Trump’s domestic and foreign 2. In America’s constitutional system, treaties must policies in conflict, and ensure decades of diplomatic obtain the advice and consent of the Senate blowback. before the United States may lawfully join them. President Obama deemed the Paris Agreement to For those and other reasons, the Paris Agreement not be a treaty in order to evade constitutional imperils both America’s economic future and capacity review, which the Agreement almost certainly for self-government. would not have survived. The Paris Agreement and the 1992 treaty it purports to 3. Allowing Obama’s climate coup to stand will set modify, the United Nations Framework Convention on a dangerous precedent that will undermine one Climate Change, both contain provisions for withdrawal. of the Constitution’s important checks and Concerns about diplomatic blowback if President balances. It will allow a future president to adopt Trump withdraws from the Agreement or submits it for any treaty he and foreign elites want, without the Senate’s advice and consent actually confirm the Senate ratification, just by deeming it “not a wisdom of exercising one of those options. The Paris treaty.” Agreement is designed to institutionalize a running campaign of diplomatic blowback unless the U.S. 4. The Agreement endangers America’s capacity submits to ever-tightening constraints, ratcheting up for self-government. It empowers one every five years. If Trump withdraws, any diplomatic administration to make legislative commitments blowback would largely be a muted one-off event, for decades to come, without congressional without the economic, political, and security costs authorization, and regardless of the outcome of that staying in the Paris Agreement entails. future elections. It would also make U.S. energy policies increasingly unaccountable to voters, To safeguard America’s economic future and capacity and increasingly beholden to the demands for self-government, President Trump should pull out of foreign leaders, U.N. bureaucrats, and of the Paris Agreement. There are several options for international pressure groups. doing so, which are discussed in this paper. Regardless of which option Trump selects, his administration Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty 1 5. The United States cannot comply with the Paris 7. The Agreement has no democratic legitimacy. Agreement and pursue a pro-growth energy President Obama kept mum about climate agenda. Affordable, plentiful, reliable energy is change during the 2012 elections. Only after the lifeblood of modern economic life. Yet, the being reelected did he unveil a climate agenda Paris Agreement’s central goal is to make fossil featuring an EPA-redesigned electric power fuels, America’s most plentiful and affordable system and the most “ambitious” climate energy source, more expensive across the board. agreement in history. Implementing the agreement’s progressively more restrictive five-year emission-reduction 8. Withdrawing from the Paris Agreement is a pledges—called Nationally Determined humanitarian imperative. The Agreement will Contributions (NDCs)—would destroy U.S. produce no detectable climate benefits. Instead, manufacturing’s energy price edge. it will divert trillions of dollars from productive investments that would advance global welfare 6. The Agreement entails more cost and risk than to political uses. Worse, the Agreement’s the country is willing to bear. A majority of mid-century emission-reduction goals cannot states have sued to overturn the Obama be achieved without drastically reducing Environmental Protection Agency’s end-run energy-poor countries’ current access to around Congress, the Clean Power Plan, which affordable energy from fossil fuels. is also the centerpiece of the U.S. NDC under the Paris Agreement. Yet, the CPP is only a start. All of Obama’s adopted and proposed climate For all the foregoing reasons, President Trump should policies would only achieve about 51 percent stick to his campaign promises to end America’s of just the first NDC, and the Paris Agreement participation in the Paris Climate Agreement and requires parties to promise more “ambitious” stop payments to the U.N. Green Climate Fund. NDCs every five years. 2 Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty Introduction advice and consent, because there is no President Trump should keep his chance of obtaining the requisite support two-part campaign promise to cancel of “two thirds of the Senators present.”3 U.S. participation in the Paris Climate Instead, he simply, and without Agreement and stop all payments to precedent, declared the sweeping pact The Paris Climate United Nations global warming an “executive agreement” that he programs.1 The Paris Agreement is a could undertake unilaterally. Agreement is a costly and ineffectual solution to the In short, President Obama tried to imbue treaty by virtue alleged climate crisis. It is also plainly his climate agenda with a treaty-like a treaty. For those and other cited of its costs and status, but without going through the reasons, the Paris Agreement imperils treaty process. Such a gamble might risks, ambition both America’s economic future and have worked had Hillary Clinton won capacity for self-government. Failure to compared to the White House and Republicans lost withdraw from the agreement would the Senate. But the Paris Agreement previous climate entrench a constitutionally damaging could still undermine Trump’s energy precedent, set the president’s domestic treaties, and deregulatory agendas if he tries to and foreign policies in conflict, and split the policy baby—dismantle Obama dependence ensure decades of diplomatic blowback. administration climate policies while on subsequent President Trump is already taking steps staying in a pact that purportedly makes to rescind the Clean Power Plan and those policies promises to the world, legislation other greenhouse gas (GHG) emission- while mobilizing political pressure to by Congress, reduction policies that President Obama keep those “commitments.” promised to the 21st Conference of the and other Failure to withdraw also invites climate Parties (COP) to the United Nations policy litigation, already intended by common-sense Framework Convention on Climate non-governmental organizations and Change (UNFCC).2 However, Obama criteria. activist attorneys general, because had no authority to make such joining the Paris Agreement tacitly commitments on his own. affirms the preferred narrative that The Paris Climate Agreement is a climate change is humanity’s greatest treaty by virtue of its costs and risks, peril and “inaction” threatens millions ambition compared to previous climate of lives. treaties, dependence on subsequent U.S. industry has a huge energy price legislation by Congress, and other advantage over its global competitors, common-sense criteria. Under the which underpins the American U.S. Constitution, treaty making is a manufacturing revival Trump power shared by the president and campaigned on. The climate policies Congress. However, Obama refused to required to meet President Obama’s submit the pact to the Senate for its Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty 3 emission reduction commitments under to previous climate treaties, dependence the Paris Agreement would destroy that on subsequent legislation, intent to edge. Obama pledged to reduce U.S. affect state laws, U.S. historic practice, emissions by 26 to 28 percent below and other common-sense criteria.5 The Paris 2005 levels by 2025, with deeper cuts Thus, America cannot constitutionally every five years thereafter. That is join the Agreement absent the Senate’s Agreement already significant, but he went much advice and consent. President Obama threatens to further. He also committed the United ignored those criteria, which are States to rapidly phase out fossil fuels detailed in a well-known State reduce the over 35 years.4 Department Circular, to which President Trump should refer in Senate’s “advice Therefore, President Trump should following through on his promise to withdraw from the Paris Agreement to and consent”