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Will Trump send the Paris Agreement to the US Senate?

Benny Peiser, GWPF

This is the key question that will determine the future of US and international climate diplomacy for years.

The next few months will show whether the incoming Biden administration will get its way and rejoin the Paris climate accord as promised, or whether the outgoing Trump administration will try to prevent this from happening.

Ever since he ran for President, Donald Trump made leaving the Paris agreement a key part of his election platform in 2016, arguing that withdrawing from the accord would help to revitalise the US economy with booming energy production, turning the USA into the world’s leading energy superpower.

Trump’s rejection of the Paris agreement was based on his view that it was extremely unfair to the US, allowing rising Asian superpowers, in particular China, to use cheap fossil fuels to make Chinese manufacturing much more competitive and to increase its energy investments around the world, while the US was forced to curtail using its abundant cheap energy resources, while having to pay much of the $100 billion annual green transfer fund to the developing world which is part of the Paris agreement.

President Trump announced the withdrawal back in June 2017, but the Obama administration had made sure that the US couldn’t withdraw that easily. It took more than three year for that to happen. On 4 November, one day after the US Presidential elections, the US formally withdrew from the Paris climate agreement. The delay was due to the hurdles that were intentionally built into the Paris agreement to minimise the possibility that a future US president would decide to withdraw the US from the deal – just as Republican-lead US Senate leaders had promised.

Now, of course, Joe Biden has promised to reverse the reversal, pledging that his incoming administration will re-join the Paris agreement, most likely on 20 January 2021, the same day he takes office.

This widely predicted development has caused an angry response by President Trump. During the recent G20 meeting of world leaders Trump repeated his key reasons for pulling out of the UN climate agreement.

Yet, Trump has only himself to blame for a situation whereby a simple letter by President Biden to the UN can undo what he decided by the stroke of a pen. By failing to submit the Paris agreement to the US Senate for ratification or likely rejection, he has enabled the new US administration to rejoin the climate accord in the same way he withdrew, simply by sending a letter to the UN.

Today, the Wall Street Journal has published a call for Donald Trump to use his remaining time in office to finally send the Paris Accord to the US Senate.

Joe Biden has promised to rejoin the Paris Climate Accord on day one, but President Trump could stop it from having any binding legal power.

President Obama signed on to the international agreement by executive action in 2015, which meant Mr. Trump could withdraw from it the same way, as he did in 2017. As per the terms of the accord, that withdrawal became effective on Nov. 4, 2020. Mr. Obama’s pledge to reduce greenhouse-gas emissions at least 26% by 2025 wasn’t legally binding. Only Senate consent to its ratification could have made it so—and the upper chamber would have rejected the treaty handily if Mr. Obama had submitted it.

Yet if Mr. Biden brought the U.S. back into the accord, it’s possible it will take on the weight of law. Although there is nothing about the agreement’s terms or the manner in which the U.S. entered it that make it legally binding on the U.S., some green group may find a friendly federal court to produce that result.

Example: Mr. Trump rescinded Mr. Obama’s 2012 Deferred Action for Childhood Arrivals immigration program, yet it remains in place. Although DACA was both created and reversed by executive action, the Supreme Court blocked its rescission in June on grounds that the Trump administration’s decision was “arbitrary and capricious” under the Administrative Procedures Act. The court’s rationale was procedural; the justices didn’t deny that the president can reverse a predecessor’s executive action. But creative lawyers and judges can find ways of blocking a new president from changing policies, with Congress never having a say.

To prevent the Paris Climate Accord from taking on such undue power, Mr. Trump should submit it to the Senate, and Majority Leader Mitch McConnell should schedule a quick vote. It would certainly be rejected—ratification requires a two-thirds vote—and it is unlikely any court could subsequently resurrect a legislatively tossed treaty. Without the help of judges, Mr. Biden would need a winning ratification vote to make the accord binding, which he likely couldn’t get no matter how well Democrats do in Georgia’s January runoffs and the 2022 midterm elections.

The next few months will show whether the incoming Biden administration will get its way and rejoin the Paris climate accord, or whether the outgoing Trump administration will try to prevent this from happening by trying to send it to the US Senate – in spite of huge legal hurdles.