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Reflections on the US withdrawal from the Paris Climate Change Agreement

Reflections on the US withdrawal from the Paris Climate Change Agreement

Ending months of fevered speculation, President Donald Trump fulfilled his campaign promise and announced US withdrawal from the 2015 Paris Agreement last week. He did so because in his opinion the Paris Agreement inflicts ‘severe energy restrictions’ on the United States and ‘punishes’ the United States ‘while imposing no meaningful obligations on the world’s leading polluters.’ This post seeks to examine the merits of the US’ stated rationale for withdrawing from the Paris Agreement, and then offers some reflections on next steps for the US in the international climate change regime.

How Valid are Trump’s Criticisms?

President Trump’s remarks reveal a fundamentally flawed understanding of the Paris Agreement. First, his remarks suggest that the Paris Agreement is a prescriptive instrument that ‘inflicts’ restrictions and ‘imposes’ obligations on states. This is not the case. Admittedly, some states had early in the Paris Agreement negotiations hoped to replicate the Kyoto model of binding ‘targets and timetables’ backed by a compliance system with an enforcement branch. However, it became rapidly evident that the Kyoto model would not find favour either with the US that had rejected the Kyoto Protocol or with developing countries that were expected to take GHG mitigation measures post-2020. Thus, the Paris Agreement reflects an entirely different approach. It requires states to submit ‘nationally determined’ contributions NDCs (not internationally prescribed or negotiated ones) and includes binding obligations of conduct in relation to them (to prepare, communicate and maintain NDCs, not to achieve them). It also subjects NDCs to normative expectations of ‘progression’ and ‘highest possible ambition’. These are expectations, however, not binding obligations. The Paris Agreement thus does not ‘impose’ or ‘inflict’ burdens or obligations of the sort Trump refers to on Parties. To the extent that the Trump administration believes the US NDC to be burdensome, it is not the Paris Agreement that demanded this particular NDC but the previous US administration that unilaterally offered it based on an assessment of national circumstances, constraints and priorities.

President Trump’s remarks also suggest that the Paris Agreement prescribes a burden sharing arrangement between Parties. One, moreover, that is deeply unfair to the US. This too is not the case. Developing countries have long championed for a prescriptive burden sharing arrangement in the climate change regime. However, the US, and other developed countries, seemingly scarred by the Kyoto experience, consistently opposed such a prescriptive burden sharing arrangement in the Paris Agreement. The Paris Agreement therefore contains a more nuanced form of differentiation tailored to each individual issue area. In the area of mitigation, which President Trump alludes to in his remarks, differentiation takes the form of ‘self-differentiation’, that is, since Parties choose their own NDCs, each party differentiates itself from the others. There are limits to such self-differentiation. All Parties are subject to normative expectations of progression and ‘highest possible ambition,’ and developed countries are subject to the expectation of leadership. However, whether Parties fulfil these (or not) is for now left to individual determination.

India and China, singled out in President Trump’s speech, have NDCs that are different from the US NDC not because the Paris Agreement imposes a prescriptive burden sharing arrangement on countries, but because these countries have different national circumstances. It seems patently obvious that India’s NDC would be different to that of the US. India is responsible for 1/3rd the cumulative emissions the US is responsible for, has per capita greenhouse gas (GHG) emissions that are 1/8th that of the US, and has a Human Development Index (HDI) ranking of 131 while that of the US is 10. In any case the rhetoric of victimhood – that the US is being treated unfairly – is peculiar, and deeply problematic, given the US is responsible for 27% of cumulative historic emissions, 15% of cumulative current emissions and has per capita GHG emissions that are double the global average. Moreover the US has, at last count, rejected two of the three multilateral climate change agreements that it helped craft on the grounds of (un)fairness. My colleague, Navroz K. Dubash, rightly challenges this US appropriation of the language and rhetoric of fairness.

Thus the reasons offered by President Trump for withdrawing the US from the Paris Agreement are truly baffling. One can only assume that yet again the international climate regime is being held hostage to the vicissitudes of domestic politics in the US. Be that as it may, now that President Trump has announced US withdrawal from the Paris Agreement, what next?

What Next for the US?

First of all, although the US announcement was made, to much fanfare, earlier this week, the Paris Agreement only permits a state to withdraw three years after the Agreement enters into force for that state. The withdrawal then takes effect a year later (Article 28). The US will remain a Party to the Paris Agreement until at least November 2020. President Trump announced that the US would immediately cease all implementation of the Paris Agreement and its NDC. However, as Daniel Bodansky points out as long as the US is a party to the Paris Agreement, which it will be until 2020, it is bound to perform its commitments under the treaty in good faith. The US is also entitled to continue participating in the ongoing climate negotiations. It is unlikely, however, given President Trump’s remarks, and the drastic funding cuts for environmental programs in the US, that the US will invest time in preparing submissions or send sufficient representation to the ongoing climate negotiations. Even in advance of their decision to withdraw from the Paris Agreement, the US sent a skeletal team to Bonn last month for the latest round of climate negotiations. In any case, the US is likely to be politically marginalized, and its role in shaping the Paris ‘rule book’ will be limited.

Second, the scope for renegotiating the Paris Agreement is limited. President Trump repeatedly expressed a desire to renegotiate the Paris Agreement to secure a fair deal for the US. Other states have made it clear that they have little appetite to renegotiate a painstakingly crafted and widely accepted instrument, indeed one shaped by US red lines. In any case it is unclear, given that the remarks made by President Trump bore little relation to the content of the Paris Agreement, exactly what would be renegotiated and to what end. And, if the US did renegotiate the Paris Agreement it could not secure a better deal than the one it currently has. It appears from the President’s remarks that his administration’s concern is not the Paris Agreement but the NDC chosen by the previous US administration. Some commentators have suggested that the US may still be open to the possibility of downgrading its NDC rather than withdrawing completely from the Paris Agreement. However, such downgrading is likely to wreck havoc with the normative foundations of the Paris Agreement built on ‘progression’, ‘highest possible ambition’ and ‘developed country leadership.’ I discuss this issue in an earlier post. Arguably it is better to have the US outside the regime than in it with a downgraded NDC. With the US out, at least the normative foundations of the Agreement are secure from opportunistic manipulation by the Trump administration.

Finally, should the US choose to return to the fold, the door to re-entry will remain open. Anytime after its withdrawal takes effect the US could deposit its instrument of ratification, acceptance or approval, and thirty days thereafter the Agreement will enter into force for the US (Articles 20 and 21). There is a danger, of course, that the Paris Agreement, like the Kyoto Protocol, will be demonized in American popular consciousness, making later re-entry politically challenging. But if the overwhelming response of US states, cities and corporations is any indication – many of whom have come together to offer to fulfil the US NDC despite Trump’s withdrawal from the Paris Agreement – the US will merely take a diplomatic back seat in the negotiations for the next few years, and return to the fold when the administration changes.

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