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06/01/2017

Declaring the Paris Climate Accord Unconstitutional (Updated)
Michael Ramsey

Reports are that the President has decided to withdraw from the 2015 Paris Climate Change Agreement, although it's unclear what form the withdrawal will take.  From Politico

President Donald Trump is planning to pull the United States out of the Paris climate change agreement, a White House official said Wednesday morning — only to have Trump himself revive the suspense less than an hour later.  ...

... Administration officials said they are still sorting out the details of how exactly Trump would withdraw, and one noted that nothing is final until an announcement is made.

One widely discussed legal obstacle is that the Agreement by its terms does not allow a notice of withdrawal for three years. And there is not much doubt that the Agreement (including the no-withdrawal term) is binding on the United States as a matter of international law.  That raises a tricky constitutional question of whether the President can withdraw from the Agreement in violation of international law.

There is another approach, suggested by a number of commentators, that seems preferable to me.  The Paris Agreement is a treaty under the U.S. Constitution because it imposes material binding long-term commitments on the United States.  As a result, it cannot be ratified on behalf of the United States by the President alone (as President Obama purported to do).  As an original matter, the Constitution requires it to be approved through the advice and consent of two-thirds of the Senate prior to ratification; modern practice might allow approval by majorities in both houses of Congress to substitute for Senate consent, but even under modern practice there is no precedent for unilateral presidential approval of material binding long-term commitments.  (See my discussion of the history of U.S. agreement making here: The Treaty and Its Rivals: Making International Agreements in U.S. Law and Practice).

The principal counterargument is that the Agreement does not actually impose material binding long-term commitments on the United States because many of its key provisions are nonbinding.  I considered this argument in a series of blog posts a while back, and at greater length in this article:  Evading the Treaty Power?: The Constitutionality of Nonbinding Agreements.  The short of it is that I think the Agreement does impose material binding long-term commitments on the United States despite the fact that much of it is nonbinding.  Enough of it is binding that it is beyond unilateral presidential power.  As I put it in Evading the Treaty Power (11 FIU Law Review at 115-116, in summer 2016 [extensive footnotes omitted]):

First, it is not clear that the Agreement’s specific binding provisions are sufficiently minor to justify the use of an executive agreement rather than a treaty. For example, Article 4.2 states that “[e]ach Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures with the aim of achieving the objectives of such contributions.” Thus the United States must identify target emissions goals (“nationally determined contributions”) and must take some (unspecified) mitigation measures (even though the emissions goals themselves are nonbinding). If a future President or Congress decides the target goals process is not worthwhile, the process cannot be discontinued without violating a binding obligation (and the United States must remain a party to the Agreement for at least three years, per Article 28).

Second, irrespective of the specific binding commitments, the agreement binds the United States to a general goal of reduced carbon emissions for an extended time, even though the implementation of that goal is left nonbinding. For the future, the United States is not committed to any specific level of emissions, but it is committed to the general policy of reducing emissions. Unlike truly nonbinding agreements, a future President cannot change that policy without violating international law. If a new President thinks global warming is overstated as a threat, or that that emissions reductions will not materially mitigate the threat, the President is not free to articulate or act on that view.

We now have the "future President" I hypothesized, and the arguments being made against him are that the Agreement constrains him from discontinuing the "nationally determined contributions" process or from pulling back from the "general policy of reducing emissions."  But these constraints on the President show that the Agreement is in fact a material binding commitment of the United States, and thus was unconstitutionally approved by unilateral presidential action.

What is the consequence?  If the U.S. ratification of the Agreement was unconstitutional as a matter of domestic law, the President's obligation to uphold the Constitution allows (I would say requires) him to rectify the violation by withdrawing the ratification.  It's true that an immediate withdrawal would violate international law.  But in a choice between violating U.S. constitutional law and violating international law, the President's duty to the Constitution comes first.  Thus the President has a clear path to an immediate withdrawal that does not require broader claims about the President's ability to violate constitutional international agreements.

UPDATE:  Related thoughts from Eugene Kontorovich at Volokh Conspiracy: The U.S. can’t quit the Paris climate agreement, because it never actually joined.  

Two features cut heavily against [the Paris Agreement] being treated as the kind of arrangement that can be entered into by a president on his own authority. First, it has a four-year waiting period for withdrawal, quite unlike traditional executive agreements. Second, it is a large multilateral deal, and the other parties apparently believe it requires domestic ratification. Whatever that means for U.S. constitutional purposes, it does suggest that other countries should hardly protest if Trump merely follows their example to seek domestic ratification.

Some general principles are worth reviewing. In international law, the term “treaty” is one of the many terms for a binding international agreement. Not all agreements that are “treaties” in the international law sense — i.e., that create a binding international obligation — are “Treaties” in the constitutional sense. It is well accepted that there is a class of international agreements that the president can commit the United States to on his own authority, without invoking the treaty process. However, the scope of the “sole executive agreement” (SOE) category is a matter of great dispute.

...

While there are no clear rules about the treaty/executive agreement, the Paris accord has some features, not yet analyzed on this context, that do not follow the pattern of past SOEs. So simply pointing out that there are such things as SOEs does not mean this is one of them, given that it departs from the SOE model in significant ways. ...

FURTHER UPDATE:  The President announced that the U.S. will withdraw from the Agreement.  But I have not been able to determine from media reports or the official statement what the timing or the legal theory is.