//  3/27/17  //  Commentary

For months, speculation about whether the U.S. will withdraw from the Paris Agreement has centered on the President’s eldest daughter. Rumors are swirling that Ivanka Trump and her husband are working to persuade Trump to keep the U.S. in the accord while White House Strategist Steve Bannon and others want him to keep his campaign promise to “tear up the agreement.”   Given the Trump Administration’s all-out assault on the programs that form the basis of the U.S. commitment under the agreement, however, it seems worth asking whether it even makes any difference if we stay in.   As long as Trump is president, it’s hard to believe that it does, except perhaps symbolically.

The hostility of the Trump White House to climate policy is hard to overstate.  Trump’s EPA Administrator, Scott Pruitt, doesn’t believe there’s much of a connection between carbon dioxide emissions and increasing temperatures.  As Oklahoma’s Attorney General, he sued EPA repeatedly to invalidate its climate regulations.  The President himself has called global warming a hoax perpetrated by the Chinese to gain a competitive advantage against the U.S.

Perhaps no quote better captures the Trump Administration’s attitude toward the issue than Office of Management and Budget Director Mick Mulvaney’s:  “Regarding the question as to climate change, I think the President was fairly straightforward. We're not spending money on that anymore. We consider that to be a waste of your money to go out and do that.”

Beyond this exhibition of disdain, the administration has given every indication that it will dismantle the programs that form the centerpiece of the U.S. commitment under the Paris Agreement.  Very basically, under the agreement, each of the 197 parties submitted a Nationally Determined Contribution (NDC) setting forth its  individual commitment to address greenhouse gas emissions.   In its NDC, the U.S. agreed to reduce its emissions by 26 to 28 percent below 2005 levels by 2025.   Here are the main components of its commitment and what the Trump Administration has done or indicated it will do to each:

Clean Power Plan:  The centerpiece  U.S. commitment under the Paris Agreement is the Clean Power Plan (CPP).  The CPP cuts emissions from the electricity sector by 32 percent by 2030.  The power sector is the second largest source of greenhouse gases in the U.S.—but the cuts in emissions would be greater than from the transportation sector, making the CPP’s contribution to the U.S. commitment of outsize importance.  The Trump Administration has repeatedly vowed to rescind the CPP.

Increased Fuel Economy Standards: The second biggest piece of the U.S. commitment is the strengthening of fuel efficiency standards from cars and trucks.  The Trump Administration has announced that it will review the standards for new cars for 2023-2025 model years, with the expectation that it will weaken them.   Pruitt’s EPA may also try to rescind California’s waiver to issue its own standards.

Tighter Energy Efficiency Standards for Appliances:  In order to reduce energy consumption, the Obama Administration issued more stringent efficiency standards for 29 different categories of equipment and appliances. The Trump Administration has frozen the implementation of six of these standards—those that were not yet finalized but were close—by refusing to allow agencies to send the regulations for publication in the Federal Regulation. The standards apply to appliances like air conditioners and compressors. 

Methane Emissions Reductions from Landfillsand Oil and Gas Operations: In addition to adopting a new regulation to reduce methane from landfills, late in its term, the Obama Administration issued regulations to reduce emissions from oil and gas operations on public lands. The House of Representatives has voted to rescind the oil and gas regulations under the Congressional Review Act and the Trump Administration is signaling that it will withdraw the rule. 

High Global Warming Potential Hydroflourocarbon Reductions: The Obama Administration issued a rule requiring the phase out of some uses of HFCs, which are a particularly potent greenhouse gas. This is the only rule that, to date, the Trump Administration appears to be supporting, perhaps because Dupont Chemical’s spinoff Chemour Company and Honeywell support the rule. Nevertheless this rule may be in legal jeopardy. 

In short, then, the Trump Administration has taken aim at four out of the five major greenhouse gas emissions reduction strategies the U.S. has committed to under the Paris Agreement. 

But there’s more.  Trump has also proposed cutting the entire U.S. contribution to the Global Climate Change Initiative, which provides about 20 percent of the funding for the diplomatic and technical programs that are central to the international climate negotiation process.  And hehas proposed eliminating all funding for the Green Climate Fund, a central component of international climate programs to help developing countries finance climate change-related projects. The U.S. has pledged $3 billion to the Fund and has to date paid $1 billion of its commitment.

What would it mean, then, for the Trump Administration to keep the U.S. a party to the Paris Agreement?  Our membership would be in name only.  The Administration’s plan is to renege on our emissions commitments, refuse to support the process financially, and leave the Green Climate Fund with a $2 billion hole. 

Would the Administration then seek to attend the annual Conferences of the Parties, meetings designed to keep the global community moving forward in addressing climate change?  Would the U.S. seek to pressure countries like China to be transparent in providing data to prove that it is meeting the commitments it has made in its own submission under the Paris Agreement? Would we seek to get countries to strengthen their commitments given that the collective efforts of the 197 parties are not close to getting us to keep global temperature increases below 2 degrees centigrade? It’s hard to imagine this administration funding the personnel necessary even to attend future climate talks, let alone playing  a constructive and substantive role in the process.  And if it tried to do so, the administration would have no credibility.

Loudly withdrawing from the Paris Agreement, or even from the overall framework convention under which the agreement was negotiated (the United Nations Framework Convention on Climate Change), would deal the process a symbolic blow, I suppose.  But it’s hard to see the Administration’s attack on the underlying substance of our commitments as anything other than a slightly quieter withdrawal in all but name.  If Ivanka succeeds in persuading her father to remain in the accord, we should view her efforts as nothing more than window dressing. 

The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

The Fight for Contraceptive Coverage Rages in the Time of COVID-19

5/6/20  //  Commentary

Even the Supreme Court has been required to take unprecedented steps by closing the building, postponing argument dates, and converting to telephonic hearings. Those impacts should be reflected in all aspects of the Court’s work, including the decisions it renders for the remainder of this term.

Take Care

Are There Five Textualists on the Supreme Court? If So, They’ll Rule for Transgender Workers.

5/6/20  //  Commentary

The Title VII cases before the Court present a fundamental question: are there really five textualists on the Court? We’ll find out soon.

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