The response to Trump’s new agenda is limited to kicking and screaming.
“I’ve got a pen, and I’ve got a phone. And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward.” — Barack Obama, January 14 2014
The problem with President Obama’s strategy for his political and policy legacy is that an “action” that lives by the pen can die by the pen. So it will be, apparently, with his administration’s climate and other environmental policies, which are on the way to being largely undone by Donald Trump’s administration after the property tycoon won the US election last week.
US and international climate activists will try to hang on, kicking and screaming, to the various big Obama climate actions. Unfortunately, it would seem to be the case that if a president decides to undo a previous president’s executive orders, or signatures on international agreements, he can do so. So kicking and screaming may describe the limits of the effective response to Mr Trump’s undoing of President Obama’s climate agenda.
For the most part, the outgoing president’s climate policy was enacted by decree, rather than laws or treaties ratified by the Senate. This seemed to be a clever idea at the time. After the 2010 elections, climate sceptics among the Republicans and fossil-fuel friendly Democrats were able to block controversial environmental legislation.
So the administration’s significant climate actions, the Environmental Protection Agency’s Clean Power Plan and the State Department’s negotiations for the Paris agreement, which set out an international action plan to tackle global warming, were taken without Congressional participation.
The Paris agreement reached at the UN climate change conference last November was, according to US law, an executive agreement rather than a treaty. Under the US constitution, treaties must be approved by two-thirds of the Senate, which is a major cat-herding problem even at the best of times.
The advantage of a treaty is that it has a higher ranking in law than executive actions or legislation passed through Congress or state governments. It is harder to undo.
The Paris agreement negotiators thought they had gotten around this problem by including within its terms a cumbersome three-year process that any signatory nation would have to follow to withdraw its assent. So this made the agreement “legally binding”, as everyone who mattered was saying at the time.
However, the people who did not matter at the time just elected a new US president, who has made promises to coal miners, mining companies and coal-burning utilities that he would rip up “Paris”. These people have spent the past year figuring out how to make good on Mr Trump’s promise.
They took note that the Paris agreement is really a subsidiary agreement of another international accord, the 1992 UN Framework Convention on Climate Change. That has been governing all the annual gatherings on climate change since then. Any signatory, such as a Trump-led America, can withdraw from the UNFCC on one year’s notice.
Legal experts from US environmental organisations point out that under “customary international law” the country is bound to respect international executive agreements that are not treaties ratified by the Senate. And they are right.
Unfortunately, there is a conflict on this point between customary international law and the US constitution, one that has not really been tested. In the end, a president can probably just withdraw from an executive agreement when he decides to do so. He might be reviled by the international community, Congress and even the public, but he can almost certainly do it.