//  5/18/17  //  Commentary

If the Trump Administration chooses to remain in the Paris Agreement, it will be fascinating to see how the administration participates in its implementation. Most specifically, what will the Administration do about the fact that it has already repudiated most of the U.S. Nationally Determined Contribution (NDC)—the U.S. pledge under the Paris Agreement to cut its emissions—submitted by the Obama Administration? Legally, can the U.S. submit a new NDC that is less ambitious than its current submission?  And if it does so, how will the parties to the agreement respond under the treaty? Of course, there’s also a political question here: assuming that the U.S. submits a less ambitious NDC, what would that commitment look like and would the administration embrace the mission of the Paris Agreement in its submission?

Fundamentally, the NDC process under the agreement commits each signatory to “undertake and communicate ambitious efforts to ... achiev[e] the purpose of this Agreement….”  Countries communicate their efforts through their NDCs.  

The current U.S. NDC commits the U.S. to greenhouse gas emissions reductions of 26 to 28 percent below 2005 levels by 2025.  Its centerpiece is the Clean Power Plan. Yet the Trump Administration has committed to withdrawing the CPP.  The current NDC also includes ambitious greenhouse gas emissions standards for passenger vehicles.  The Trump Administration is threatening to weaken them.  The NDC includes methane reductions from oil and gas operations on public lands.  Although the Senate just refused to overturn the rule, all indications are that the Trump Administration will withdraw and weaken it significantly.

Indeed, of the five central components of the U.S. NDC, the Trump Administration is rejecting four of them in whole or in part.  Only one, an important regulation that limits the uses of some hydroflourocarbons (supported by Honeywell and Chemour, which may explain the Administration’s support) is likely to remain in effect. 

So what would a new, Trumpian U.S. NDC look like?

At a minimum, any Trump NDC would need to acknowledge that the U.S. is altering its central components.  And presumably, any new NDC would need to lower the overall U.S. commitment substantially: if Trump succeeds in dismantling the Obama climate programs, we would achieve emissions reductions far lower than the 26-28 percent by 2025 than we have committed to.

That raises a legal question under the Paris Agreement: can a country weaken its commitment rather than strengthening it? Article 4.11 of the agreement says that a party “may at any time adjust its existing [NDC] with a view to enhancing its level of ambition....”  Architects of the language say that it encourages more ambitious language but does not require it.  Others, including EPA Administrator Scott Pruitt and the Competitive Enterprise Institute, argue that the language is meant to prevent backsliding.

Perhaps more important than the language about NDCs is the fact that the Paris Agreement contains no mechanism to punish a wayward party.  In other words, even if the U.S. were to submit a weaker NDC, the Paris Agreement includes no means to sanction the Trump Administration. Most legal analysts have also concluded that if the U.S. remains in the Paris Agreement, its participation is unlikely to have any legal bearing on any domestic lawsuits involving the Trump Administration’s efforts to roll back the Obama programs that make up our NDC.

Formally, though, while it’s true that the agreement has no enforcement mechanism that would penalize the U.S. for lowering its commitment, it nevertheless has an “implementation and compliance mechanism.” Article XV, paragraph 1 first establishes “a mechanism to facilitate implementation of and promote compliance with the provisions of” the Agreement.  Article XV, paragraph 2 of the agreement further explains,

2. The mechanism referred to in paragraph 1 of this Article shall consist of a committee that shall be expert-based and facilitative in nature and function in a manner that is transparent, non-adversarial and non-punitive. The committee shall pay particular attention to the respective national capabilities and circumstances of Parties.

Would a weaker U.S. submission be viewed as something an Article XV committee should try to address “in a manner that is transparent, non-adversarial and non-punitive?”  Given that the U.S. has significant national capabilities, perhaps so.  It’s interesting to imagine what such a committee meeting might look like. The bottom line, though, is that the worst that the Trump Administration could expect if it submitted a weaker NDC is a “transparent, non-adversarial and non-punitive” committee that would presumably work to facilitate a stronger U.S. contribution.

Substantively, the other big question is what a U.S. NDC would actually contain. The administration has two potential options.

The first path is to take the Paris Agreement’s purposes seriously and submit an NDC that makes the case that the U.S. will still achieve greenhouse gas emissions reductions of a certain percentage (lower than the current NDC) by 2025 levels. But doing so would commit the Administration publicly to a strategy – emissions reductions that reduce global warming – that to date it has disavowed.  And would the Administration attempt to maximize the percentage reduction it can represent to the global community by, for example, relying on Obama-era regulations it hasn’t dismantled (energy efficiency standards for appliances, greenhouse gas standards for automobiles for 2018-21) and on aggressive actions states like those California and New York are taking to reduce their emissions?  The irony is a bit much to contemplate.

Or does the Trump Administration instead simply submit language similar to what its representatives apparently have been parroting in global meetings when the issue of climate change is raised.  Written comments submitted in this week’s Bonn climate talks consistently say something like the following:  "The administration is reviewing existing policies and regulations in the context of a focus on strengthening U.S. economic growth and promoting jobs for American workers, and will not support policies or regulations that have adverse effects on energy independence and U.S. competitiveness."

How does the global community respond to either approach?  In either case, it’s hard to imagine the U.S. stepping up as a global leader or being viewed favorably for its positions.  But remaining in the Paris Agreement could allow Trump to appease his daughter and give him cover to appear to be more reasonable than his domestic environmental policies on the ground deserve.  And it would definitely be met by largely favorable media and public reaction.  

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.

Take Care