The Legal andEconomic Case
Against the Paris
Climate Treaty
Canceling U.S.
Participation Protects
Competitiveness and theConstitution​
By Christopher Horner, Esq.
and Marlo Lewis, Jr., Ph.D.
ISSUE ANALYSIS 2017 NO. 6

May 2017

The Legal and Economic Case
Against the Paris Climate Treaty

Canceling U.S. Participation Protects Competitivenessand the Constitution
By Christopher C. Horner, Esq. and Marlo Lewis, Jr.,Ph.D.

Executive Summary
President Trump should keep his two-part campaign
promise to cancel U.S. participation in the Paris
Climate Agreement and stop all payments to United
Nations global warming programs. The Paris Agreement
is a costly and ineffectual solution to the alleged climate
crisis. It is also plainly a treaty, despite President
Obama’s attempt to implement it without the Senate’s
advice and consent. Failure to withdraw from theagreement would entrench a constitutionally damaging
precedent, set President Trump’s domestic and foreign
policies in conflict, and ensure decades of diplomatic
blowback.
For those and other reasons, the Paris Agreement
imperils both America’s economic future and capacity
for self-government.

The Paris Agreement and the 1992 treaty it purports tomodify, the United Nations Framework Convention on
Climate Change, both contain provisions for withdrawal.
Concerns about diplomatic blowback if President
Trump withdraws from the Agreement or submits it for
the Senate’s advice and consent actually confirm thewisdom of exercising one of those options. The Paris
Agreement is designed to institutionalize a running
campaign of diplomatic blowback unless the U.S.
submits to ever-tightening constraints, ratcheting up
every five years. If Trump withdraws, any diplomatic
blowback would largely be a muted one-off event,
without the economic, political, and security costs
that staying in the Paris Agreement entails.
To safeguard America’s economic future and capacity
for self-government, President Trump should pull outof the Paris Agreement. There are several options fordoing so, which are discussed in this paper. Regardlessof which option Trump selects, his administration

should make the case for withdrawal based on thefollowing key points:

1. The Paris Climate Agreement is a treaty by
virtue of its costs and risks, ambition compared
to predecessor climate treaties, dependence on
subsequent legislation by Congress, intent toaffect state laws, U.S. historic practice withregard to multilateral environmental agreements,and other common-sense criteria.

2. In America’s constitutional system, treaties mustobtain the advice and consent of the Senate
before the United States may lawfully join them.
President Obama deemed the Paris Agreement to
not be a treaty in order to evade constitutional
review, which the Agreement almost certainly
would not have survived.
3. Allowing Obama’s climate coup to stand will set
a dangerous precedent that will undermine oneof the Constitution’s important checks andbalances. It will allow a future president to adopt
any treaty he and foreign elites want, without
Senate ratification, just by deeming it “not atreaty.”4. The Agreement endangers America’s capacity
for self-government. It empowers one
administration to make legislative commitments
for decades to come, without congressional
authorization, and regardless of the outcome of
future elections. It would also make U.S. energy
policies increasingly unaccountable to voters,
and increasingly beholden to the demandsof foreign leaders, U.N. bureaucrats, andinternational pressure groups.

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

1

5. The United States cannot comply with the Paris
Agreement and pursue a pro-growth energy
agenda. Affordable, plentiful, reliable energy is
the lifeblood of modern economic life. Yet, theParis Agreement’s central goal is to make fossil
fuels, America’s most plentiful and affordable
energy source, more expensive across the board.
Implementing the agreement’s progressively
more restrictive five-year emission-reduction
pledges—called Nationally Determined
Contributions (NDCs)—would destroy U.S.
manufacturing’s energy price edge.

6. The Agreement entails more cost and risk thanthe country is willing to bear. A majority ofstates have sued to overturn the Obama
Environmental Protection Agency’s end-run
around Congress, the Clean Power Plan, whichis also the centerpiece of the U.S. NDC under
the Paris Agreement. Yet, the CPP is only a start.
All of Obama’s adopted and proposed climate
policies would only achieve about 51 percent
of just the first NDC, and the Paris Agreement
requires parties to promise more “ambitious”
NDCs every five years.

2

7. The Agreement has no democratic legitimacy.
President Obama kept mum about climatechange during the 2012 elections. Only after
being reelected did he unveil a climate agenda
featuring an EPA-redesigned electric powersystem and the most “ambitious” climateagreement in history.

8. Withdrawing from the Paris Agreement is ahumanitarian imperative. The Agreement willproduce no detectable climate benefits. Instead,
it will divert trillions of dollars from productive
investments that would advance global welfare
to political uses. Worse, the Agreement’s
mid-century emission-reduction goals cannot
be achieved without drastically reducing
energy-poor countries’ current access toaffordable energy from fossil fuels.
For all the foregoing reasons, President Trump should
stick to his campaign promises to end America’s
participation in the Paris Climate Agreement andstop payments to the U.N. Green Climate Fund.

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

Introduction
President Trump should keep his
two-part campaign promise to cancel
U.S. participation in the Paris Climate
Agreement and stop all payments toUnited Nations global warming
programs.1 The Paris Agreement is acostly and ineffectual solution to thealleged climate crisis. It is also plainly
a treaty. For those and other cited
reasons, the Paris Agreement imperils
both America’s economic future andcapacity for self-government. Failure towithdraw from the agreement would
entrench a constitutionally damaging
precedent, set the president’s domestic
and foreign policies in conflict, andensure decades of diplomatic blowback.

President Trump is already taking steps
to rescind the Clean Power Plan andother greenhouse gas (GHG) emissionreduction policies that President Obamapromised to the 21st Conference of theParties (COP) to the United Nations
Framework Convention on Climate
Change (UNFCC).2 However, Obama
had no authority to make suchcommitments on his own.

The Paris Climate Agreement is atreaty by virtue of its costs and risks,
ambition compared to previous climate
treaties, dependence on subsequent
legislation by Congress, and othercommon-sense criteria. Under the
U.S. Constitution, treaty making is a
power shared by the president andCongress. However, Obama refused tosubmit the pact to the Senate for its

advice and consent, because there is nochance of obtaining the requisite supportof “two thirds of the Senators present.”3
Instead, he simply, and without
precedent, declared the sweeping pact
an “executive agreement” that hecould undertake unilaterally.

In short, President Obama tried to imbue
his climate agenda with a treaty-likestatus, but without going through thetreaty process. Such a gamble might
have worked had Hillary Clinton won
the White House and Republicans lostthe Senate. But the Paris Agreement
could still undermine Trump’s energy
and deregulatory agendas if he tries tosplit the policy baby—dismantle Obamaadministration climate policies whilestaying in a pact that purportedly makes
those policies promises to the world,
while mobilizing political pressure tokeep those “commitments.”
Failure to withdraw also invites climate
policy litigation, already intended by
non-governmental organizations andactivist attorneys general, because
joining the Paris Agreement tacitly
affirms the preferred narrative thatclimate change is humanity’s greatest
peril and “inaction” threatens millionsof lives.

The Paris Climate
Agreement is atreaty by virtue
of its costs andrisks, ambition
compared toprevious climate
treaties,
dependence
on subsequent
legislation
by Congress,
and othercommon-sense
criteria.

U.S. industry has a huge energy priceadvantage over its global competitors,
which underpins the American
manufacturing revival Trump
campaigned on. The climate policies
required to meet President Obama’s

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

3

The Paris
Agreement
threatens to
reduce the
Senate’s “advice
and consent”
function to amere rubber
stamp foruncontroversial
agreements.

emission reduction commitments under
the Paris Agreement would destroy thatedge. Obama pledged to reduce U.S.
emissions by 26 to 28 percent below
2005 levels by 2025, with deeper cuts
every five years thereafter. That isalready significant, but he went muchfurther. He also committed the UnitedStates to rapidly phase out fossil fuels
over 35 years.4
Therefore, President Trump should
withdraw from the Paris Agreement todispel the long shadow it casts on
America’s energy producers and job
creators, and to annul the precedential
force of Obama’s attempted end-run
around the constitutional treaty process.
If Trump does not do so, any futurepresident who wants to join an
unpopular or unwise treaty will feel
free to simply deem it an “executive
agreement” to evade Senate review.
Repairing that breach in theconstitutional fabric is reason enoughto withdraw from the Agreement.

There are several withdrawal options,each with its own relative benefits andrisks. The quickest and most durable
option is to withdraw from the 1992
parent treaty, the United Nations
Framework Convention on Climate
Change. All are described below.
Climate Coup
The December 2015 Paris Agreement
is a treaty by virtue of its costs, risks,prescriptiveness, “ambition” compared4

to previous climate treaties, dependence
on subsequent legislation, intent toaffect state laws, U.S. historic practice,and other common-sense criteria.5
Thus, America cannot constitutionallyjoin the Agreement absent the Senate’s
advice and consent. President Obamaignored those criteria, which aredetailed in a well-known State
Department Circular, to which
President Trump should refer infollowing through on his promise toexit the pact.6
To evade Senate review, President
Obama claimed the Paris Agreement
is not a treaty, even after describing it
as “the most ambitious climate change
agreement in history.”7 Worse, theObama administration took the position
that the executive alone may determine
which agreements are treaties andwhich are not. Acceptance of thisreasoning would allow future presidents
to adopt any treaty at whim by simply
deeming it “not a treaty.” Thus, theParis Agreement threatens to reduce
the Senate’s “advice and consent”
function to a mere rubber stamp for
uncontroversial agreements.
Proponents of the Paris Agreement—
including, we are informed, somecareer State Department lawyers
advising the Trump White House on
the matter—dismiss that danger byclaiming it is “non-binding.” In fact,
the Agreement’s numerous proceduralcommitments—which address reporting,monitoring, verification, committee

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

functions, and conferences—are binding
under international law. However,proponents in effect claim the additionof substantive non-binding provisions
somehow makes the entirety “nota treaty.”
The Agreement has two principal,
substantive commitments:
1. Five-year emission-reduction
pledges called Nationally
Determined Contributions(NDCs); and2. Foreign aid pledges called“climate finance.”

Signatory countries are legally obligatedto make such promises but are notlegally obligated to keep them.
However, for the United States, that is
a distinction without a difference. As
all parties are aware, it is U.S. practice
to keep the country’s promises, and
the American people expect theirleaders to do so. As designed by Obamaadministration officials, the Parisclimate regime would create plenty ofopportunities for America to be “named
and shamed” into keeping Obama’s
non-binding promises.8 The Paris
Agreement is the framework document
for a multi-decade, global, politicalpressure campaign by climate activists
and their political allies to force theU.S. and other industrialized nations
to suppress the production and use of
the United States’—and the world’s—
most affordable, reliable, and abundant
energy sources.

The Agreement provides for thecreation or continuation of at least 17
multilateral committees specializing insuch matters as mitigation, adaptation,compliance, implementation, technology
transfer, and finance. Some eight
committees may have a role inmonitoring Nationally Determined
Contributions and related actions.9
Nearly a dozen committees may havea role in debating, monitoring, andreporting on financial contributions.10
In addition, every annual Conferenceof the Parties meeting will provide
a forum for 160-plus developing
countries to demand more foreign aid
under the name of “climate finance.”

In short, the Paris Agreement envisions
endless rounds of meetings, which
create myriad opportunities to “nameand shame”11 countries whose

governments question the alleged
climate consensus, deviate from theirfive-year NDC plans, or fail to makemore “ambitious” commitments every
five years.12 Inevitably, the UnitedStates will face relentless politicalpressure to promise much, and to keep
the initial and all subsequent promises.
Thus, concerns about “diplomatic
blowback” if Trump withdraws fromthe Agreement actually confirm thewisdom of pulling out. The Paris
Agreement is constructed to
institutionalize a running campaignof diplomatic blowback, ratcheting up
every five years.

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

The Paris
Agreement
envisions endlessrounds ofmeetings, which
create myriad
opportunities
to “nameand shame”
countries whose
governments
question the
alleged climate
consensus.

5The Paris
Agreement isa mechanism
to lock inprogressive
policies
regardlessof electoral
outcomes.

6

Moreover, the Paris Agreement willgrow the U.S. administrative state
while aligning it with an international
coalition beyond the reach of U.S.
voters. The U.S. Environmental
Protection Agency (EPA)—an agency

already prone to overreach—would leadthe development and implementation of
U.S. commitments under the Agreement.
Federal climate regulators would
become even less accountable toCongress, as they work “cooperatively”
with their counterparts in foreign
governments, multilateral organizations,and “civil society” pressure groups.
The Paris Agreement is hard-wired tonarrow the American people’s policy
options and political choices in threeways:
1. Pressure President Obama’s
successors, future Congresses,
and even courts to uphold the
Clean Power Plan and otherclimate regulations byrebranding those policies as“promises” America has madeto the world.
2. Pressure future U.S. policy
makers to pledge increasingly“ambitious” Nationally
Determined Contributions
every five years starting in
2020, implement thosepromises via ever-more
stringent regulations, and growthe international echo chamber
via ever-more lavish “climate
finance” handouts.

3. Make U.S. energy policies
increasingly unaccountableto voters, and insteadincreasingly beholden to thedemands of foreign leaders,
U.N. bureaucrats, andenvironmental lobbyists.
In short, in addition to licensing an
unconstitutional power grab, the Paris
Agreement is a mechanism to lock inprogressive policies regardless ofelectoral outcomes.
The Paris Agreement andthe Trump Administration—
Engineering Policy Conflict
Trump’s advisors are reportedly divided
on whether he should keep his
campaign promise to cancel America’s
participation in the Paris Agreement.13

At the same time, a White House
spokesperson says that even if Trump
stays in the Agreement, he will “knockout”14 Obama’s Climate Action Plan,15
for which he has now issued an
executive order.16 Yet, the Agreement
is the Action Plan’s capstone,
committing the United States topreserve that Plan and strengthen it.
Rescinding Obama’s climate policies
and maintaining the Paris Agreement
are irreconcilable objectives. Suchbaby-splitting would commit the Trumpadministration to conflicting policy
directions, hobble his deregulatory
and energy agendas, and put America

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

in a political straitjacket hostile to theadministration’s policies.

The pro-Paris camp is itself conflicted.
On the one hand, beguiled by Obama’s
claim that the Agreement is“non-binding,” “non-enforceable,”and, thus, supposedly, “not a treaty,”
they view it as posing no threat toanything conservatives care about.
On the other hand, they warn thatwithdrawing from the treaty will
provoke political and diplomatic
blowback, second only to withdrawing
from NATO,17 which implies it carries
grave responsibilities and has teeth.18

They supposedly worry about upsetting
allies who claim to be counting on the
United States to make the Agreement
work. During the Paris negotiating
sessions, the Obama administration
claimed the EPA’s Clean Power Plan
(CPP), the single largest component of
the proposed U.S. emission reduction
commitment, was legally “bulletproof.”19 However, no serious
negotiating party could fail to noticethat Obama’s commitments were an
audacious roll of the legal andpolitical dice.

Secretary of State John Kerry signed
and President Obama “accepted” theAgreement on behalf of the UnitedStates despite an unprecedented
Supreme Court stay of the Clean Power
Plan, which was itself concocted as an
end-run around Congress. As all parties
were aware, a majority of U.S. states
were suing to overturn the CPP, andthe stay, in West Virginia, et al. v. EPA,
meant five justices thought petitioners
were likely to prevail on the merits.

The parties also knew that Republicans
in Congress and one of the two
major-party candidates in the 2016
presidential race would oppose such adeal. Thus, much of the blowback if
Trump withdraws from the Agreement
will be political theater. Protest overthe Paris Agreement will fade once
Trump makes clear America is gettingout and there is no turning back.

In contrast, if Trump fails to get out
now and affirms Obama’s claim tohave made America a party to theAgreement, “diplomatic blowback”
will become a running saga. The Parispressure machine will trigger blowback
every time this president, Congress, or
future administrations deviate fromObama’s NDC emission-reduction
promises, hesitate to fund or increase“climate finance,” or fail to adopt
more stringent NDCs every five years,
as well as the accompanying laws andregulations required to implement them.

Obama’s commitments under the Paris
Agreement went much further than the
climate rules Trump is rescinding. The
goals of just the first U.S. NDC
surpasses the emission reductions
achievable by the entire suite of
Obama’s adopted and proposed climate
policies by about 49 percent.20 Of
course, subsequent NDCs promise togo even further than that.

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty7

To paraphrase
the GEICO ad,“When you’re
the United States,
you keep yourpromises; it’swhat you do.”Trump campaigned against Obama’s
overreach, specifically regarding the
Clean Air Act—including, for example,
the greenhouse gas emissions rulesthat are the largest component of
Obama’s plan to implement the Paris
Agreement. That law instructs the EPA
to periodically review its regulations
and make them more stringent if it
finds the situation and technology
warrant it. This very model underlies
the Paris climate regime, which would
grant the same bureaucracy, driven by
the same philosophy—not only at the
EPA but also across the massive
sweep of the federal government—theability to determine every five years
whether expanding their power overindividuals and the economy iswarranted or not.
Trump can either keep his promise to
the people who elected him or keep thepromises Obama made to the United
Nations in an attempt to circumvent
American constitutional constraints.
He cannot do both. Hoping to square
this circle, some conservatives argue
that because the Paris Agreement
provides no legal penalties for
non-compliance, Trump can stay in it
yet ignore it.21 That is not politically

viable. Americans expect their leaders
to keep all bona fide commitments,
whether or not those are legally
enforceable. To paraphrase the GEICO
ad, “When you’re the United States,
you keep your promises; it’s what you

8do.” Under the Paris Agreement, a
nation honors its “non-binding”
emission-reduction and climatefinance commitments by turning thosepromises into enforceable obligations—domestic laws and regulations. Thus,
the only way to unplug from thepressure machine is to withdraw
from the Agreement.

A similar have-your-cake-and-eat-it-too
recommendation is for Trump to“effectively withdraw” from the Paris
treaty by declaring it was neverproperly ratified. While we agree withthat assessment, this does nothing to
restrain activist courts. Words without
deeds are not politically persuasive. To
extricate America from the pressurebox and annul the precedential force
of Obama’s evasion of the treaty
process, Trump must withdraw from
Paris, not merely criticize it.

As for claims that the world looks
to the United States for “climate
leadership,” U.S. leadership would besquandered by signing on to a deal
that will produce no detectable climate
benefits22 and divert trillions of dollars
from more productive investments thatwould actually improve living standards
and health.23 Worse, the agreement is apotential humanitarian disaster, as its
mid-century emission reduction goals
cannot be achieved without drasticallyreducing energy-poor countries’
current access to affordable energy
from fossil fuels.24

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

Renegotiating the Paris Agreement, sothat it leaves open a future for coal andother fossil fuels, is also a nonstarter.

That supposedly would be accomplishedby scaling back Obama’s first NDC andobtaining an international commitment
to develop and commercialize carbon
capture and storage (CCS) technology.25
This not only ignores that the Paris
Agreement is supposedly the instrumentthat would force the development of a
CCS breakthrough, but that no amountof “forcing” of CCS will bring it about.
The U.S. government has been trying
to develop such technologies for
decades, and there is still not a single
utility-scale carbon capture and storage
power plant in operation anywherethat does not depend on taxpayer andratepayer subsidies.26 Pouring more
taxpayer dollars into uneconomic
energy is no way to drain the swamp.

More importantly, whatever rhetoricalconcessions other parties might maketo keep America at the table (in thehope that Trump’s successor will pickup where Obama left off), the main
political forces driving the Agreement
are dedicated to eliminating the
production and use of fossil fuels.
The climate lobby and its allies inlegislatures, agencies, and attorney
general (AG) offices will not stoptrying to use the Paris Agreement toconstrain U.S. energy policy choices.
Moreover, whatever deal Trump makes
today could be undone by any of his
successors. In short, no modifications

negotiated by the Trump administration
can secure the future of U.S. energy
producers as well as exiting anagreement designed to bankrupt them.
Lessons from Kyoto
To draw some political lessons from
history, the Trump administration shouldlook to President George W. Bush’s
political struggles over the Kyoto
Protocol—a global warming treaty
with little popular support that was
nixed in advance by the U.S. Senate.27

On March 27, 2001, the Bushadministration reportedly “rejected”
the Kyoto Protocol—which President
Bill Clinton signed despite Senate“advice” to the contrary—when newly
appointed EPA Administrator Christine
Todd Whitman said, “we have nointerest in implementing that treaty,”
while National Security Advisor
Condoleezza Rice proclaimed, “Kyoto
is dead.”28 Actually, Bush never“unsigned” or otherwise officiallyrejected Kyoto. Rather, the George W.
Bush administration merely continued
the Clinton administration policy ofnot seeking Senate ratification. For theUnited States, Kyoto remains a signed
treaty pending ratification.29 Nonethe-

No modifications
negotiated by
the Trumpadministration
can secure thefuture of U.S.
energy producers
as well as exiting
an agreement
designed tobankrupt them.

less, under a fusillade of diplomaticand media opprobrium, which seemed
to have caught the White House off
guard, the Bush administration soon
found itself making excuses forsomething it had not done.30

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

9Consider this June 2001 post mortem
from National Security Advisor Rice:[T]he President had made clear
when he was a candidate that hedid not believe the Kyoto Protocol
addressed the problem of climatechange in a way that the UnitedStates could support. He had thebacking, by the way, of a Senatethat was under no means preparedto ratify such an accord. … In
retrospect, perhaps the fact that
we understood that we hadalready said this was not
immediately observable toeverybody, and it might havebeen better to let people know
again, in advance, including ourallies, that we were not going tosupport the protocol. But asI said to European ambassadors,
I was surprised that anyone
was surprised.31

Bush officials should have anticipatedthe controversy and environmentalist
pushback, and developed a plan to set
the terms of debate before announcing
their decision. For example, Bush could
have announced he was continuing the
Clinton administration policy of notseeking ratification of the Kyoto
Protocol. He then could havechallenged critics to explain why
non-ratification was sound policy
under Clinton but not his successor.
Alternatively, Bush could havesubmitted Kyoto to the Senate for a10

ratification debate, especiallyconsidering that many Democrats
likely would have opposed ratification
at the time. The treaty almost certainly
would have failed to obtain the requisite
support of “two thirds of the Senatorspresent.” Much of the “diplomatic
blowback” could have been avoided, orat least mitigated. The climate lobby
now seeks to rerun the Bush playbook
against Trump, with near-identicaltalking points, right down to the“diplomatic blowback” claims.32
Trump should avoid entreaties tocompromise with a “Paris Lite” policythat ignores Obama’s first NDC yet
affirms Obama’s claim to have madethe United States a party to theAgreement, which purports to commit
us to deeper cuts every five years. Anysuch equivocation will embolden the
climate lobby to demand further
concessions and position the next
progressive administration to use theParis Agreement as the global bully
pulpit and wealth transfer program
Obama envisioned.

Don’t Admit It Is a Treaty
After having failed to get climatechange legislation through Congress,
President Obama kept mum aboutclimate change in the 2012 presidential
race. Only after getting reelected did
Obama resume his climate change
agenda as a priority, and went on tounveil the Paris Agreement and Clean

Horner and Lewis: The Legal and Economic Case Against the Paris Climate TreatyPower Plan as “legacy” policies.33
These rules represented an effort to goaround the legislature, which refused
to grant him this authority. Similarly,
to push the Paris Agreement through,the Obama administration claimed it is
not a treaty subject to Senate review.
However, Obama administration
officials explained matters differently.
On November 24, 2015, National
Security Council member Paul Bodnar
briefed reporters on the impending
COP 21 Paris Climate Change Summit.
The Obama administration, he
explained, had “absorbed the hard
lessons of Kyoto”:
On the international stage, we
knew a new approach would beneeded to rally all nations to takeaction. We absorbed the hard
lessons of Kyoto and heeded
bipartisan concerns. We
concluded that climate targets
should be set by countries
themselves, not imposed on them;that all countries should be
expected to act even thoughdeveloping countries faced uniquechallenges; and that we should
expect strong transparency andaccountability from all countries.
That’s the deal this administration
has been fighting for.34

But were Kyoto’s hard lessons simply
that the next agreement should rely on
self-chosen targets and challenge
developing countries to participate?

Clearly not, because despite thosefeatures, the Agreement was no more
likely than Kyoto and the subsequent
Copenhagen Accord to overcome
Congress’ concerns.35

The key lesson the Obama team andits negotiating partners took from Kyoto
and Copenhagen is that the UnitedStates will not ratify new climate
treaties, so next time just insist it is
not a treaty. That “lesson” was theheart of the Obama administration’splan. Consider a December 2009 email
to then-EPA Administrator Lisa Jackson(obtained by CEI in Freedom ofInformation Act litigation over her
pseudonymous “Richard Windsor”
email account), which is redacted in its
entirety except for the topline caution:

The key lesson
the Obama team
took from Kyoto
is that the UnitedStates will not
ratify new climate
treaties, so nexttime just insist
it is not a treaty.

[Please note: It is important torefer to the goal at Copenhagen as
an “accord” (and especially not
as a “treaty”)].36

As of August 2014, long before theterms or legal form of the Paris treaty
were agreed upon, the Obamaadministration’s key negotiating
partners knew not to call the pact atreaty. Laurence Tubiana, the French
climate change ambassador to the
U.N. and President of the Paris COP,
told the New York Times:
There’s a strong understandingof the difficulties of the U.S.
situation, and a willingness towork with the U.S. to get out ofHorner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

11What is hard—by constitutional
design—is toobtain the
Senate’s consent
to major
international
commitmentsthat lack broadpolitical support.

this impasse. There is an implicit
understanding that this not require
ratification by the Senate.37
Six months before the COP 21 meetingin Paris, negotiators openly discussed
the reality that under America’s
constitutional treaty-making process,any climate deal submitted to the
Senate for its advice and consent would
be dead on arrival. Addressing a groupof African delegates at the June climatechange conference in Bonn, Germany,
COP 21 host Laurent Fabius expressed
his desire to negotiate an agreementthat could bypass Congress:
We must find a formula which
is valuable for everybody andvaluable for the U.S. without
going to Congress. … [W]e know
the politics in the U.S. Whether
we like it or not, if it comes to theCongress, they will refuse.38

In late August 2015, still months before
the Paris Agreement had taken its final
form, Obama asserted that it is not atreaty and therefore he could makeAmerica a party to it without the
Senate’s consent.39 Numerous State
Department emails obtained under
FOIA by the Energy and Environment
Legal Institute (E&E Legal) show
close consultation with ideologicalclimate activists on legal concerns
regarding the Agreement.40

Two weeks before the Paris Climate
Summit, Kerry told the Financial
12

Times the Agreement is “definitively
not going to be a treaty.”41 Then, at
Kerry’s behest, COP 21 President
Fabius agreed, only two days before theconference, to instruct all 25,000-plus
COP delegates that they were not tocall the Agreement a “treaty.”42 Yet,just two months later the U.N. Climate
Change Secretariat issued a legal
memorandum to the parties outlining“next steps” for ensuring “the proper
execution of all treaty action related tothe agreement.”43

Unfortunately, the Senate set the stagefor Obama’s climate power grab when
it caved to the Obama administration’s
claim that the Joint Comprehensive
Plan of Action, also known as the Irandeal, is not a treaty. Despite widespread
criticism by GOP leaders that the
Iran deal is a treaty requiring Senate
review,44 Congress in May 2015 instead
passed the Iran Nuclear Agreement
Review Act (H.R. 1191), whichauthorized the House and Senate toblock the deal by passing a joint
resolution of disapproval.45 The
resolution was subject to a presidentialveto, effectively requiringsupermajorities in both chambers
for passage. The Senate never got tovote on the resolution, because aprocedural motion to move to a final
vote fell two votes short of the 60
needed to overcome a filibuster.46
The Act was a caricature of the treaty
process which, in recognition of theseriousness with which the institution

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

is supposed to take such entanglements,
empowers 34 senators (or fewer if
fewer than 100 are present) to stop anagreement. Substituting H.R. 1191 forthe constitutional process, on a matteras critical and controversial as a nuclear
arms deal, sent an unmistakable signalthat the Senate would avoid institutional
confrontation at all costs. It let
opponents blow off steam while Obama
got his way. Then when Obamainevitably followed this by deeming
the Paris Agreement to be an executive
agreement he could approve on his
own, the Senate did not even go
through the motions of putting up
a fight.
Fortunately, that does not necessarily
end the discussion. Even if a president
could unilaterally decide what is andis not a treaty, his successor would befree to conclude the Paris Agreement
is a treaty and therefore not acommitment of the United States until
approved by the Senate. Under this“what are you going to do about it?”approach, things are what one branchof government says until anotherbranch or successor claims otherwise.

Here again, the Iran deal reveals the
Obama administration’s disdain for thetreaty process. In July 2015, Secretaryof State Kerry told the House
Foreign Affairs Committee that theadministration did not pursue the Iranarms deal as a treaty because obtaining
the Senate’s advice and consent totreaties has “become physically

impossible.”47 Kerry was wrong. The
Bush administration secured the
Senate’s consent to 163 treaties from2001 to 2009.48 The Senate evenapproved a multilateral nuclear security
treaty two days after Kerry pronounced
the treaty process defunct.49
What is hard—by constitutional
design—is to obtain the Senate’s
consent to major international
commitments that lack broad politicalsupport. That the treaty process does
not give the president free rein to do
as he pleases is not a reason to evadethe process, but rather to vigilantly
protect it.

The fragility of Obama’s climate coup
is reflected in the parties’ rush to bring
the pact into effect before the U.S.
election. As the New York Timesobserved:
Complex and controversial
international accords usually takeseveral years to enter into legal
force. But the haste on the Paris
accord was driven at least in partby the looming American election.
Donald J. Trump, the Republican
candidate, has vowed to pull theUnited States out of the accord if
he is elected. If the deal comes
into legal force before thepresidential inauguration, it willtake four years under the accord’s
rules for the United States tolegally withdraw. That would
keep the country bound to themeasure through the first term ofHorner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

That the treaty
process does
not give thepresident freerein to do as
he pleases is
not a reason toevade theprocess, butrather tovigilantly
protect it.

13

The mostimportantreason fortreaty making
to be a shared
power is tocheck thepresident’s
discretion.

the next administration. “We haveno time,” Mr. Ban [Ki Moon, UN
Secretary General] said, addressing
the General Assembly on Tuesday.
“I urge you to bring the Paris
agreement into force this year.”50“Complex and controversial
international accords” certainly
suggests a pact important enough towarrant Senate review. If Trump were
to declare the Paris Agreement a treaty
for Article II purposes, climate
activists would have to identify andput forward rational criteria for

distinguishing treaties from non-treaties.
Fortunately, the State Department has
already done so, but regardless, sucha debate could be healthy for the
republic. It might revive the old
constitutional spirit in the Senate to
defend Congress’ institutional
prerogatives and make “checks andbalances” once again a household term.
The Framers’ Perspective
The most important reason for treaty
making to be a shared power is tocheck the president’s discretion.
As Alexander Hamilton argued inFederalist 75:

14

The history of human conduct
does not warrant that exalted
opinion of human virtue which
would make it wise in a nation tocommit interests of so delicate
and momentous a kind, as thosewhich concern its intercoursewith the rest of the world, to thesole disposal of a magistratecreated and circumstanced aswould be a President of theUnited States.51
By “created and circumstanced,”
Hamilton meant the president is not amonarch, but a temporary custodianof executive power, so his personal
interests and those of the nation are
more likely to diverge. Given his
limited tenure in office, a president islikely to face greater temptation than amonarch to negotiate treaties for
personal or partisan gain. The “mostambitious climate change agreementin history” would necessarily affect“momentous” interests. Thus, leaving
the approval of such a pact to the
executive’s discretion would be unwise.
Article II of the Constitution alsoestablishes treaty making as a shared
power because it partakes of both
executive and legislative functions.
Federalist 75 continues:

Though several writers on thesubject of government place thatpower in the class of executive
authorities, yet this is evidently anarbitrary disposition; for if we
attend carefully to its operation, it
will be found to partake more of
the legislative than of theexecutive character, though it
does not seem strictly to fallwithin the definition of eitherof them. The essence of the

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

legislative authority is to enact
laws, or, in other words, toprescribe rules for the regulationof the society; while the executionof the laws, and the employmentof the common strength, either forthis purpose or for the common
defense, seem to comprise all
the functions of the executive
magistrate. The power of making
treaties is, plainly, neither the one
nor the other. It relates neither tothe execution of the subsistinglaws, nor to the enaction of newones; and still less to an exertionof the common strength. Its
objects are CONTRACTS withforeign nations, which have theforce of law, but derive it fromthe obligations of good faith.
They are not rules prescribed by
the sovereign to the subject, but
agreements between sovereignand sovereign. The power inquestion seems therefore to forma distinct department, and tobelong, properly, neither to thelegislative nor to the executive.52
Two points are noteworthy. First, thetreaty power partakes “more of thelegislative than the executive character.”
Second, Hamilton was proved morecorrect than he knew. The Framers did
not anticipate modern health, labor,
and environmental treaties, which
typically require extensive enactmentof new laws and regulations “prescribedby the sovereign to the subject.”

The predominately legislative characterof the Paris Agreement is obvious, asaffirmed by the Paris construct’s
resemblance to the Clean Air Act. A
party’s NDC is inescapably a promise
to enact new laws and regulations tomeet ever-more stringent emission
reduction targets. As noted, Obama
pledged to reduce U.S. emissions by
26 to 28 percent below 2005 levels by
2025 and to rapidly phase out fossil
fuels over the next 35 years.53 The
laws and regulations required to
implement NDCs primarily affect the
U.S. economy and domestic policy
priorities, not America’s relations withother nations. In addition, climate
finance payments drawn from theTreasury must be pursuant toappropriations by Congress. By what
constitutional logic does the Senate
have no role in making a pact
promising new laws and more
foreign aid?

By whatconstitutional
logic does the
Senate haveno role inmaking a pact
promising newlaws and more
foreign aid?

Federalist 63 is also relevant. A key
reason for the Senate’s comparatively
small size, long tenures, and staggered
elections is to foster a “due sense ofnational character”:
A FIFTH desideratum, illustrating
the utility of a senate, is thewant of a due sense of national
character [under the Articles ofConfederation]. Without a selectand stable member of thegovernment, the esteem of foreign
powers will not only be forfeitedby an unenlightened and variable

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

15

Dollars spent on
climate change
mitigation andadaptation
produce far lesssocial, economic,
or environmental
benefit than thesame dollars
spent on dozens
of otherdevelopment
targets.

policy, proceeding from thecauses already mentioned, but thenational councils will not possessthat sensibility to the opinion of
the world, which is perhaps notless necessary in order to merit,than it is to obtain, its respect andconfidence.54
Some might argue that a “sensibility
to the opinion of the world” requires
President Trump to stay in the Paris
Agreement, which supposedly
represents the collective aspirations ofmankind. A pact designed to provide
trillions of dollars in “climate finance”
to supranational organizations andelites in developing countries andexpand every government’s control ofprivate energy-related capital investment
has many cheerleaders.55 George
Bernard Shaw said it best: “Agovernment that robs Peter to pay
Paul can always depend on the supportof Paul.”56

However, the notion that such voices
speak for the interests of humanity is
debatable, to put it mildly. For example,
the Copenhagen Consensus finds thatdollars spent on climate change
mitigation and adaptation produce farless social, economic, or environmental
benefit than the same dollars spent on
dozens of other development targets,
such as reducing child malnutrition
and improving health outcomes.57
Moreover, despite all the governmentorchestrated PR behind it, the Paris

16

Agreement’s supposed beneficiaries
do not seem to buy the party line. The
U.N.’s “My World” survey of nearly
10 million people worldwide places“action on climate change” at thebottom of 16 development priorities,
well behind a good education, better
health care, better job opportunities,
and honest governance.58

Acting with a “sensibility” to world
opinion does not mean aligning withthe policy preferences of foreign elites.
If that were the case, the Framers
would not have adopted a republican
form of government. During the 1980s,
the United States often showed strengthof character by standing alone, ornearly alone, in opposing agendas at
the U.N. that were hostile to Americaninterests and American allies.59 Morefundamentally, leaders with a due
sense of national character honor therules of international engagement laid
down in the Constitution. How canforeign governments rely on us if weallow passions of the moment or
partisan agendas to upend ourconstitutional arrangements?

If America’s trustworthiness as anegotiating partner is now in doubt, it
is because Obama did not vet his
promises with the Senate before signingon the dotted line. EPA Administrator
Gina McCarthy’s assurance that
the Clean Power Plan is legally“bulletproof” may have impressed somedelegates at the Paris COP, but few
Senators would put much stock in such

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

boasting (at least five Supreme Court
justices were less than awestruck).60
Involving the Senate through its
constitutional treaty-making role
would have spared everyone thecurrent controversy.

The advice and consent process is aquality control filter. Although not
infallible, it is unique to international
agreements because of their seriousness.
Combined with the supermajority
ratification requirement, it ensures thatno treaty will be adopted without
broad-based political support. Thatdiscourages the executive frompromising others more than thepolitical composition of the country
and statutory authorities actually allow
him, or his successors, to deliver. The
treaty process minimizes the risk thatnational interest concerns will impel
one executive to upend international
commitments made by his predecessor.
Disregarding it creates great risks.
If Obama’s defiance of the treaty
process is allowed to stand, it will
become precedent, tempting futureadministrations to make grandiosepromises deficient in public support andstatutory authority. A due sense ofnational character counsels Trump to
repudiate Obama’s climate diplomacy

power grab, as he promised he would do.
“Not-A-Treaty” Word Games
We now examine several claims that
allegedly prove the Paris Climate

Agreement is not a treaty subject toSenate review.61
CLAIM I: It’s non-binding.

ANALYSIS: False and irrelevant.
First, the Agreement’s numerous
procedural requirements are binding.
Second, “not binding” has never meant“not a treaty.” Many treaties containnon-binding provisions. Exhibit A: theUNFCCC treaty ratified on October
15, 1992, establishing non-binding
goals, which the Paris Agreement
purports to modify or supplement.

The treaty status of the UNFCCC,
with its non-binding emission targets,has never been challenged. Not by the
Clinton administration, which cited
the UNFCCC’s “non-binding goal” as
the treaty’s fundamental weakness thatneeded to be remedied via the Kyoto
Protocol.62 Not by Senator John Kerry

Involving the
Senate throughits constitutional
treaty-making
role would havespared everyone
the current
controversy.

at a 2007 Senate Foreign Relations
Committee lamenting the insufficiencyof the UNFCCC’s “voluntary”
emission-reduction goals.63 Not byreporters supportive of the Paris
Agreement at major media outlets.64
CLAIM I (modified): By insistingthat Article 4.4 use “should” insteadof “shall,” the Obama team ensured
Paris is not a treaty subject to Senate
review.

The argument here is that “shall” is aterm of legal obligation, and “should”
merely a term of moral suasion or
aspiration. Examples abound: “The

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

17

How does themore prescriptive,
inclusive, andambitious Paris
Agreement
qualify as the
one non-treaty
among the three?

one word that almost sank the climate
talks” (Politico),65 “The One WordThat Almost Scuttled the Climate
Deal” (Slate),66 “How US negotiators
ensured landmark Paris climate deal
was Republican-proof” (The
Guardian).67 Curiously, the “shall”
version remains the one posted at the
UNFCCC website, agreed before theheroic intervention of lore to save thedeal.68
ANALYSIS: This is pure rhetoricalsleight of hand. The words “should”
and “shall” appear in all manner ofagreements, treaty and non-treaty
alike, and both appear throughout theParis Agreement, including Article 4.

Consider this question: Which of thefollowing provisions is from the
UNFCCC treaty and which is themagical Paris language that supposedlytransformed the latter pact into a
non-treaty?
“Accordingly, the developed
country Parties should take thelead in combating climate change
and the adverse effects thereof…”“Developed country Parties
should continue taking the leadby undertaking economy-wide
absolute emission reduction
targets.”
The word “continue” is the only
thing that gives it away. The Paris

18

Agreement’s “should continue taking
the lead” echoes the UNFCCC’s“should take the lead” (Art. 3.1) So,
according to the Obama administration,a pact with “should take the lead” is atreaty, a pact that contains “should
continue taking the lead”—and in amore specific, prescriptive way througheconomy-wide absolute emission
reduction targets—is not a treaty.
There are important differences
between the two pacts, but in waysthat confirm the Paris Agreement’s
treaty status. The Paris treaty is moreprescriptive by the specific promises it
requires of developed countries. It is
more inclusive than either the
UNFCCC or the Kyoto Protocol, as
it abandons their bright-line division
between Annex I developed country
parties, which have quantified
emission-reduction goals, and
non-Annex I developing country
parties, which have not. The Paris
Agreement is also more “ambitious”
than Kyoto because parties “shallcommunicate a nationally determined
contribution every five years” (Art. 4.9),

such that each successive NDC “willrepresent a progression beyond theParty’s then current nationallydetermined contribution and reflect its
highest possible ambition” (Art. 4.3).
How does the more prescriptive,
inclusive, and ambitious Paris
Agreement qualify as the one
non-treaty among the three?

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

Try this thought exercise: Take out theParis Agreement’s Article 4.4 allusion
to the UNFCCC and leave the rest of
the pact that promises all of the climate
finance; all of the reporting, monitoring,and verification; and the first-evercommitments surpassing those of the
Kyoto Protocol. Delete Article 4.4,
and Paris is still more ambitious than
Kyoto, still more prescriptive the
UNFCCC, and still more inclusive
than both. Moreover, the U.S. NDC
pledge to “reduce emissions by 26-28
percent below 2005 levels by 2025,
and to make best efforts to reduce by
28 percent” is more stringent than the
U.S. emission reduction target under
the Kyoto Protocol.69
Remove Article 4.4, and Paris is still atreaty. U.S. negotiators’ last-minute
substitution of “should” for “shall”
does not a treaty unmake.
CLAIM I (modified further): It is
not a treaty because it lacks legallybinding emission reduction targets.

The following statements are illustrativeof this line of argumentation. “[I]t is
becoming clear that it may lack theelements that would suggest the needfor congressional consent, such aslegally binding national emissions
reduction targets” (Center for American
Progress).70 “A deal that would haveassigned legal requirements forcountries to cut emissions at specificlevels would need to go before theUnited States Senate for ratification”(New York Times).71

ANALYSIS: An agreement withlegally binding emission reduction
targets would require Senate review
due to its potential costs and risks. No
dispute there—but the converse does
not hold. Just because a climateagreement lacks binding targets does
not make it a non-treaty exempt from
Senate review. The Paris Agreement
imposes many new binding
commitments on the United Stateswith significant implications for the
U.S. economy and domestic policy.
That is sufficient to make theAgreement a treaty for purposes of
the U.S. constitutional system.

U.S. negotiators’
last-minute
substitutionof “should”
for “shall”
does not atreaty unmake.

As noted, whether an agreement’s
provisions are binding or non-bindingis less important in U.S. politics thanwhether a promise has been made ormere aspirations declared. Americans
expect their government to keep its
promises, whether or not those arebinding under international law. Parties
to the Paris Agreement meet theirvoluntary emission reduction andclimate finance commitments by turning them into legal commitments—
domestic laws and regulations. No
chains are more binding than those
we forge for ourselves.
To borrow the Framers’ terminology,
whether an agreement engages interests

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

19

“momentous” enough to warrant
Senate review does not depend onwhether certain provisions are declaredbinding. For example, Senate review
is warranted if the pact might later befound to damage important national
interests. The Paris Agreement clearly
falls into that category. Senate review
is also warranted if the pact might
compromise the “national character”—
America’s credibility and good name—by making promises lacking broadpolitical support and clear statutory
authority. Paris also fits that description.

CLAIM II: It is not a treaty because
there is no enforcement mechanism.

ANALYSIS: This is another red
herring. The UNFCCC had no
enforcement mechanism. The presenceor absence of such a mechanism does
not determine a pact’s status withrespect to the constitutional treaty
process. Even the Kyoto Protocol’s
emission reduction targets are bindingin name only. That does not makeeither pact a non-treaty.

The Kyoto Protocol’s Article 18
requires the parties to establish
mechanisms and procedures to addresscases of non-compliance, including“development of a list of consequences.”
At its 2001 Marrakesh meeting, theConference of the Parties decided thatin the treaty’s second commitment
period, 2013-2020, developed countries“shall” reduce emissions by 1.3 tons
for every ton exceeding their emission

20

reduction targets in the first commitment
period, 2008-2012.72

Even in theory the Kyoto enforcement
mechanism has almost no sting. In
practice, the 1.3-ton non-compliancesanction is a nullity. As Hannah Changof Columbia University’s Climate
Law Center explains:
For one thing, like an individual
indefinitely passing on debt into
the future, a country could simply
borrow from one commitment
period to the next and never meet
its target. If the international
community failed to “force” thecountry to meet its target in thefirst compliance period, it’sunclear how it might force thecountry to meet its target with
the included penalty in thesubsequent period. Second, eachparty negotiates its own target foreach commitment period, so a
non-complying party could
simply negotiate a higher [lessstringent] target in a second
period to accommodate the 30
percent penalty, effectively
negating any impact of theenforcement mechanism.73

National Public Radio agrees: “Thereality, however, is that even a legallybinding framework such as the Kyoto
Protocol doesn’t punish infractions.
Nations that miss their mark aresimply expected to try harder nexttime (if there is a next time).”74

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

CLAIM III: Paris is not a treaty
because it merely updates the
UNFCCC, which the Senate ratified
in 1992.

ANALYSIS: Here we come to thecrux of proponents’ argument that theParis Agreement is not a treaty. It goes
like this. In 1992, the Senate approved
a treaty obligating the parties to“report” or “communicate” theiractions to reduce emissions. The
UNFCCC also authorizes the parties
to amend the treaty. Ergo: a) the parties
at any time may alter the content andform of what is to be communicated,and b) the executive is free to accept
whatever the parties decide. Althougha) is correct, b) is nonsense. Again,
because America is a nation that keeps
its promises, the Senate cannot givethe president a blank check to makesubsequent promises to other countries
or international bodies that the UnitedStates will adopt whatever legislativeand regulatory initiatives he proposes.
In fact, the Senate specifically declined

At the Paris COP 21 meeting, theparties made a decision to adopt targets
and timetables in the form of NDCs.
The U.S. NDC, for example, is apledge to reduce U.S. emissions by
26 to 28 percent below 2005 levels by
2025.76 So, by the terms on which the
Senate approved U.S. ratificationof the UNFCCC, Obama had noauthority to join the Paris Agreement
without obtaining the Senate’s further
advice and consent.77
Consider also that the UNFCCC—
widely acknowledged as a treaty—has
a time-limited objective. It aims toreturn parties’ emissions to 1990 levels“by the end of the present decade.”78 In
contrast, the Paris Agreement requires
parties to submit more “ambitious”
NDCs every five years, in perpetuity.
The Senate’s reservation against adecision to adopt targets and timetables
applies with greater force against an
agreement that includes automatically
escalating targets and timetables.

An open-ended
delegation
to the executive
conflicts with
Article I of theConstitution,
which vests“all legislative
powers” inCongress.

More importantly, had there been nosuch express reservation, the Senate
still could not be presumed to havegiven future presidents a blank checkto promise changes in U.S. domestic
law and regulation. Such an open-ended
delegation to the executive conflicts
with Article I of the Constitution, whichvests “all legislative powers” inCongress.79

to do so when it approved the UNFCCC.
The Senate Foreign Relations
Committee expressly stipulated, and
the George H. W. Bush administrationagreed, that any future decision by theparties to “adopt targets and timetables
would have to be submitted to the
Senate for its advice and consent
before the United States could deposit
its instruments of ratification for such
This carte blanche view of the
an agreement.”75
UNFCCC has another bizarre

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

21That obtaining the
Senate’s consent
to bad treaties
is hard is anargument against
negotiating badtreaties, not for
overturning theconstitutionallyestablishedtreaty-making
process.

implication. Most climate policies aim
to curb—and ultimately eliminate—
the production and use of fossil fuels.
Consequently, climate policies havean enormous potential to raise energy
costs and depress economic growth. If
the UNFCCC authorizes the executive
to make increasingly ambitious
emission reduction promises withoutobtaining the Senate’s advice andconsent, then the treaty is effectively
an economic suicide pact (albeit one
agreed under false pretenses). The
UNFCCC as amended by the Paris
Agreement, and as interpreted byprogressive politicians and activists,threatens America’s economic future
and capacity for self-government.
Trump should withdraw from it as well.
CLAIM IV: “[I]t has become
physically impossible… you can’t passa treaty anymore.”That is a quote from Secretary of StateJohn Kerry during his July 28, 2015,
testimony before the House Foreign
Affairs Committee on why theadministration did not negotiate the
Iran deal as a treaty.80 Translation:

The treaty process is dead.

ANALYSIS: As noted, Kerry’s“physically impossible” assessment
is woefully inaccurate. The treaty
process is not dead, though ignoring
the Obama administration’s efforts to
cut out the Senate does threaten to kill
it. Approval of treaties is difficult under
America’s constitutional system—
22

intentionally so. That obtaining the
Senate’s consent to bad treaties is hardis an argument against negotiating badtreaties, not for overturning theconstitutionally established treatymaking process.
CLAIM V: President George W. Bush“joined important international
environmental agreements by using
executive agreements.”

ANALYSIS: Aside from being an
example of the “everybody does it”
fallacy, the quote above from Obamaclimate advisor Brian Deese isincorrect.81 Bush’s environmental
executive agreements provide noprecedent for Obama’s adoption of themost ambitious climate pact ever as
an executive agreement.
Deese provided no examples ofimportant environmental pacts joinedby previous presidents as executive
agreements, so we decided to check.
Using the search terms “environment”
and “conservation” in the State
Department’s searchable database,82
we found 15 Bush-era environmental
executive agreements.83

Deese did not define what he meant by
an “important” agreement. The “mostambitious … ever” Paris Agreement isclearly at the high end of the scale. It
aims to mobilize trillions of dollars inclimate finance over the next 15 years,
and “govern, regulate and incentivize
the next generation of climate actions”
in nearly 200 countries.84

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

The Bush environmental executive
agreements were small potatoes
by comparison. None entailed
commitments or risks affecting thenation as a whole. Three are bilateralagreements to promote environmental
education in public schools, and eightare bilateral agreements to promoteforest conservation via debt-for-natureswaps. The largest annual expenditureauthorized for any of those agreements
was $7.1 million.

All the Bush environmental executive
agreements were clearly authorized by
Congress, by current treaties of theUnited States, or by the president’s
inherent powers as commander-inchief or chief executive. For example,
the $7.1 million authorization is partof a bilateral side agreement with
Mexico that was included in the North
American Free Trade Agreement at
Congress’ behest, as a condition for
approving the trade treaty.85
State Department Treaty Criteria
The State Department uses eight factors
to assess whether an agreement shouldbe negotiated as a treaty requiring the
Senate’s advice and consent. Thosecriteria, set forth in a document
titled Circular 175, distinguish treaties
from other types of agreements thepresident may adopt on his own orwith the approval of simple majorities
in both chambers.

The Paris Agreement plainly qualifies
as a treaty under several criteria, andarguably under all.86

1. The extent to which the agreement
involves commitments or risks
affecting the nation as a whole.
Achieving just the initial U.S. NDC
will require costly new regulations todecarbonize all major sectors of the
U.S. economy. As noted, just the first
U.S. NDC emission reduction pledge
outstrips the achievable emission
reductions of all adopted and proposed
Obama climate policies, including the
Clean Power Plan and other regulations
Trump is rescinding, by about
49 percent.

The Paris
Agreement
plainly qualifies
as a treaty under
several criteria.

As also noted, just this initial NDC ismore stringent than the U.S. emission
reduction target under the Kyoto
Protocol. Moreover, Paris Agreement
parties are required to report a new
NDC of increasing “ambition” every
five years, in principle through 2050.
In contrast, the Kyoto Protocol
envisioned two commitment periods—
2008-2012 and 2013-2020—while
only assuring one.87 So from theperspective of cost and risk, the Paris
Agreement is more of a treaty than the
Kyoto Protocol, which no one has
claimed is not a treaty.

2. Whether the agreement is intended
to affect state laws. For the Obamaadministration, the Paris Agreement
was part of a political strategy to shield
the Clean Power Plan from hostile

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

23Only Congresshas the power
to appropriatemonies fromthe Treasury.

legislation and litigation. For example,
on December 3, 2015, top U.S. climate
negotiator Todd Stern urged the D.C.
Circuit Court of Appeals not to stay
the rule. A stay, he argued, would
cast doubt on U.S. “leadership” ininternational climate negotiations,which could induce other countries toscale back or renege on their NDCs.88
So according to Stern—before theParis Summit convened and months
before the treaty opened for signature
on April 22, 2016—the pact alreadymade the CPP too important for courts
to tamper with.89 Translated: Youshould reject states’ petition to stay
the CPP because it is a major component of our intended commitment
under the Paris Agreement.

The EPA openly acknowledged the CPP
would compel states to change theirlaws regarding electricity fuel mix,
energy dispatch policy, demand
management, and carbon trading.90
Like the Paris treaty, the CPP is aframework for increasingly ambitious
emission reduction targets, and the
Obama administration intended for thetwo policies to develop in coordination.
As NDCs become more ambitious,
so would CPP compliance targets,requiring further changes in state laws.
3. Whether the agreement can begiven effect without the enactmentof subsequent legislation by theCongress. New legislation would be
required to meet both the initial NDC
and future more ambitious NDCs. In

24

addition, the Agreement falls apartunless Congress ponies up billions for
the Green Climate Fund. Only Congresshas the power to appropriate monies
from the Treasury.91

President Obama’s Fiscal Year 2017budget provides a telling example ofthe treaty’s dependence on subsequent
legislation. The budget calls for a $10
per-barrel tax on oil to fund Obama’s
21st Century Clean Infrastructure Plan,92
a proposal touted as helping the UnitedStates meet its NDC.93 Imposing any
revenue-raising measure requires anact of Congress.94 More such revenue-

raising would be needed to comply withincreasingly stringent future NDCs.

4. Past U.S. practice regarding
similar agreements. To our knowledge,
all major pre-Paris multilateralenvironmental agreements negotiatedby the United States were subject to the
Senate’s advice and consent, including
both of the Paris treaty’s predecessor
agreements, the UNFCCC and Kyoto
Protocol.95 As noted, the Paris treaty ismore prescriptive than the UNFCCC
and more ambitious and inclusive thanboth the UNFCCC and Kyoto. The
Obama White House boasted theAgreement was in a class of its own interms of ambition, so the fact thateven one predecessor climate pact wasa treaty is largely determinative.
5. The preference of Congress as to aparticular type of agreement. The
most authoritative expression ofHorner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

congressional preference is the Senate
Foreign Relations Committee’s
stipulation when it approved the
UNFCCC that a decision of the parties
to adopt targets and timetables would
have to be reviewed as a treaty:
The committee notes that adecision by the Conference of
the Parties to adopt targets andtimetables would have to besubmitted to the Senate for its
advice and consent before theUnited States could deposit its
instruments of ratification forsuch an agreement.96

While the Paris Agreement was being
negotiated, the Senate Republicancaucus affirmed almost unanimouslythat Senate review is required forany new international climate
commitments.97

6. The degree of formality desired foran agreement. The Paris Agreement
contains more Articles than its
predecessor climate treaties. At 31
pages, its 29 treaty Articles, as well as
the 140 paragraphs of the accompanying“Decision of the Parties,” containdetailed instructions with regard to
mitigation, adaptation, finance,technology transfer, capacity building,transparency, implementation, andcompliance.98

There is also a high degree of formality
in the treaty’s genesis. The Agreement
and Decision are expressly pursuant to

the “Platform,” adopted in December
2011 by the 17th Conference of theParties in Durban, South Africa, to“develop” and “adopt” a “protocol,
another legal instrument or an agreed
outcome with legal force at thetwenty-first session of the Conferenceof the Parties and for it to come into
effect and be implemented from 2020.”99

7. The proposed duration of theagreement, the need for prompt
conclusion of an agreement, and thedesirability of concluding a routineor short-term agreement. The proposed
duration of the Paris Agreement greatly
exceeds that of the Kyoto Protocol.
White House Deputy National Security
Advisor for Strategic Communications
Ben Rhodes acknowledged thisimportant treaty criterion, telling
reporters that “our task in Paris is tosecure a long-term framework in whichcountries set successive rounds oftargets into the future, beyond 2030,
and ratchet down their carbon emissions
over the course of the coming decades
in the context of strong transparency
and accountability provisions.”100

While United Nations Secretary General
Ban Ki-moon and others felt an urgency
to beat the U.S. electoral calendar, there
was no inherent need for a prompt
conclusion that might justify bypassing
the ratification process, for threereasons.
First, it makes no difference to potential
climate change impacts whether

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

25

mitigation actions begin in one year
rather than another.

Second, the Agreement’s firstcommitment period does not begin until
2020, which would allow the Senate
plenty of time to debate the pros andcons of the treaty.

Although the“T” word wasverboten at theParis Summit,
the U.N.
Climate Change
Secretariat
administers
the Agreement
as a treaty.

Third, the formality of the treaty process
was not an impediment to prompt
conclusion. The Obama administration
sought to avoid not delay, but outright
rejection. For example, the Conferenceof the Parties adopted the Paris
Agreement on December 12, 2015;
Secretary Kerry signed it on April 22,
2016; and President Obama accepted
it on September 3, 2016—a period of
265 days. In contrast, the gestation
period for the UNFCCC, from adoption
to signing to ratification, was only
152 days.101 President George H.W.
Bush, acting through the treaty process,ratified the UNFCCC more quickly
than President Obama joined the Paris
Agreement by evading that process.
Thus, the Paris Agreement is a treaty
according to the first element ofFactor 7, and bypassing Senate review
cannot be justified by appeal to theother elements.

8. General international practice
regarding similar agreements. The
Paris Agreement is the successor to
the UNFCCC and Kyoto Protocol, bothdemonstrably treaties requiring the
Senate’s consent for U.S. participation.
26

The Agreement developed from theDurban Platform commitment todevelop and adopt a “protocol, anotherlegal instrument, or an agreed outcome
with legal force.” Those descriptors
are synonyms for “treaty,” just like
“Convention” in the UNFCCC.
Although the “T” word was verboten
at the Paris Summit, the U.N. Climate
Change Secretariat administers theAgreement as a treaty on a par withany other U.N.-sponsored multilateralagreements.102 Note the following
excerpt from the Secretariat’s legal
memorandum, “The Paris Agreement:
Next Steps.”
Section 4: “Article 26 of the Paris
Agreement provides that the
Secretary-General will be
responsible for ensuring theproper execution of all treaty
action related to the agreement.

Section 5: “Pursuant to Article 29of the Paris Agreement, the textsof the Agreement in Arabic,
Chinese, English, French, Russianand Spanish ... will be transmitted
by the UNFCCC Executive
Secretary to the Treaty Section of
the Office of Legal Affairs of theUnited Nations in New York
shortly after that document
becomes available in all six
authentic languages of theAgreement. The Treaty Section
assists the Secretary-General in

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

carrying out his depositary
function relating to multilateraltreaties.” .. .
Section 7: “In accordance withtreaty law, signing the Paris
Agreement would indicate theintention of a Party to theConvention to take steps toexpress its consent to be boundby the Agreement at a later date(see paragraph 10 below).”103[Emphases added]

Of the 139 countries joining theAgreement, 132—95 percent—have“ratified” it.104 Four countries besides

the United States—Belarus, Iceland,
Japan, and the United Arab Emirates—
chose to “accept” the Agreement,
while two others chose to “approve” it.
However, the six other non-ratifying
parties are not evidence the Paris
Agreement is not a treaty. Different
countries have different legal systems.
Japan also “accepted” the UNFCCC andthe Kyoto Protocol, which are treaties
for purposes of our legal system.
What if They Say ...
Here we address certain talking points
President Trump will likely encounter
if he has not already.
TALKING POINT: Unprecedented!
The charge here is that there is noprecedent for a president canceling apredecessor’s executive agreement on

the grounds that it is a non-ratified
treaty.

RESPONSE: Claiming there is noprecedent for blocking an unprecedented
usurpation proves too much. The
absence of precedent arises precisely
because we have never confronted an
executive who dares the Senate to stop
him from denying its shared role in thetreaty process. The “unprecedented”
move was Obama’s decision to abandon
established custom, practice, and law
with a coordinated effort to claim an
obvious treaty is not a treaty, in orderto evade a constitutional systemestablished to prevent executives frombinding the United States to schemes
lacking broad political support.

The“unprecedented”
move wasObama’sdecision to claim
an obvious treaty
is not a treaty.

Moreover, the United States has
withdrawn from agreements before.
Indeed, like all pacts, the Paris
Agreement includes a procedure forwithdrawal.

TALKING POINT: Calling it a treaty
dignifies it! This is a claim made by
Republicans who want to duck a fightand, we are informed, career State
Department lawyers. They note that“even Obama says it’s not a treaty.”
RESPONSE: Confirming that theParis Agreement is a treaty does notstrengthen the U.S. commitment to theagreement, but neuters it. Giving theParis Agreement treaty status freezes it
for U.S. purposes unless and until the
Senate votes on it—like the other 400-

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

27

plus signed but never ratified treaties,
which now gather dust on shelves.

Apparently,
some Republicans
would prefer toavoid almost any
inconvenience
today, on theirwatch, in returnfor massive
problems forsomebody
else later.

TALKING POINT: Don’t say theParis Agreement is a treaty subject toSenate review or else Democrats
will challenge Trump’s executive
agreements!
RESPONSE: This concern—whichaccording to our understanding has

also been advanced by State Department
lawyers—is either overblown ordisingenuous. The Senate could nomore force Trump to submit a bona fide
executive agreement for its review thanit could force Obama to submit theParis Agreement, a pact with all thehallmarks of a treaty. What the Senate
can do is consider an agreement for

approval as a treaty on its own volition,although in recent years senators haveshown no appetite for that sort ofinstitutional confrontation. To
persuasively argue that an executive
agreement is actually a treaty, senators
would have to articulate non-partisan
criteria, such as the State Department
is not a treaty. Perhaps what the lawyers
really want is to enable Trump to dowhat Obama did—evade Senate
review by deeming treaties to be
non-treaties. The dubious legality ofsuch reasoning aside, no politicalself-interest warrants maintaining
such a dangerous precedent.

28

TALKING POINT: There’s nourgency to withdraw from the Paris
Agreement. This is an argument madeby some Republicans in Congressseeking to avoid a fight. As E&E News
reported: “Sen. Bob Corker (R-Tenn.),chairman of the Foreign Affairs
Committee, recently noted to reportersthat the deal doesn’t require the UnitedStates to take even procedural steps
until late in Trump’s term.”105

RESPONSE: It is not surprising thatthe very parties into whose lap the work
would fall by acknowledging Paris is atreaty are advising Trump to punt on
the issue. The same parties went togreat lengths to avoid institutional
confrontation over the treaty status of
the Iran arms deal. Apparently, some
Republicans would prefer to avoid
almost any inconvenience today, on
their watch, in return for massive
problems for somebody else later.
Fortunately, others understand that“politically binding” promises are notharmless, and that Trump cannot wait
until 2020 to disavow an agreementwith a first compliance period thatstarts in 2020. E&E News reports:
The U.S. Chamber of Commerce’s
Stephen Eule, who attended U.N.
summits as a delegate during the
George W. Bush administration,
said that failing to withdraw fromthe Paris Agreement would allow
subsequent administrations to

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

pick up where the Obama administration left off, eventhough the Senate neverapproved it.
Paris isn’t as nonbinding as it
might appear, argues Eule, who isvice president of climate andtechnology at the chamber’s
Institute for 21st Century Energy.
If the United States remains aparty, it will have to participate inactions in 2018 and later that leadto a tougher emissions-reduction
commitment. It will also have to
make a statement on climate
finance for poor countries.
“That commitment is not legallybinding, but of course weknow when America makes acommitment, it usually sticks
with that commitment justbecause of the way we do things,”
Eule said.
“Strictly from a political aspect,
why would you subject yourself
to getting hammered like that for
four years?” he said.106
Republicans are kidding themselves ifthey think staying in the Agreement
will spare this administration politicalpain, let alone avert more widespread
problems arising from it. As a former
Trump transition team member

observed, dismantling Obama’s NDC
will require several battles, so you
might as well play to win:
“If you roll back the regulations,
you roll back the [nationallydetermined contribution],” theformer official said.

The U.S. pledge to cut emissions
between 26 and 28 percent
compared with 2005 levels by
2025 was supported by policies
like the Clean Power Plan, whichfaces certain doom in a U.S. EPA[run] by former Oklahoma
Attorney General Scott Pruitt (R).
“If you don’t meet thecommitment, you’re going to
get it no matter what,” theofficial said, referring to criticism.
“You may as well withdraw
from Paris.”107

Republicans
are kidding
themselves ifthey thinkstaying in theAgreement
will spare thisadministration
political pain.

Litigation Risk
Because the Paris Agreement’s
emission-reduction commitments are
non-binding, it is easy to assume thatneither the U.S. government nor any
American firm could ever be sued for
failure to pursue the Agreement’s goal
to limit “the increase in the global
average temperature to well below 2 °C
above pre-industrial levels” (Art. 2.1).
However, the U.S. government cannot
join a pact affirming the necessity for
drastic emission reductions to avert

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

29

Courts canleveragenon-binding
commitments
into legal
obligations.

planetary disaster without tacitly
confessing that its “inaction” endangers
millions of people around the world.
That sets up decades of climate
litigation.
Attorney and law professor Lukas
Bergkamp warns:

The Paris Agreement thus may
turn out to be a Trojan horse. ...
While the agreement does little toreduce the threats it identifies, itcreates risks of a different kind:it threatens our constitutionalarrangements, including theseparation of powers. In deciding
on ratification, countries should
consider not only the need forinternational coordination ofclimate policy, but also theprotection of their constitutions,representative democracy, and therule of law. Specifically, once theyagree to Paris’ high collective
ambition and ambitious substantive
requirements, countries need to be
mindful of the risks of the judiciarytaking over when it becomes clearthat the world will not deliver.108

This is not mere legal theory. The
Netherlands recently found how easily
courts can turn ostensibly non-bindingpromises and declarations into
enforceable obligations. Green activist
lawyer Roger Cox was lead counsel
representing the Urgenda Foundation
and Dutch citizens in litigation against
the Dutch government. Cox argued
30

that the government’s commitment to
reduce emissions by 16 percent did not
go far enough given positions affirmedby the Conference of the Parties. Afterconsidering this argument andarguments opposing it, the Hague
District Court ordered the government
to cut greenhouse gas emissions byat least 25 percent by 2020.109 The
government has appealed the ruling.
Nonetheless, the case is a cautionary
tale for President Trump.
Courts can leverage non-binding
commitments into legal obligations. In
a 2015 paper, Cox explains the theory
underpinning his litigation:[N]ational governments havemade quite explicit statements—
in the context of the United
Nations Framework Convention
on Climate Change (UNFCCC)
and its annual climate change
conferences—regarding thedanger of climate change andwhat should be done about it.
They have consistently done sobased on the scientific findings of
the UN’s Intergovernmental Panelon Climate Change (IPCC).110

Consequently, those governments
have embraced a “duty of care,”which creates climate torts when they
fail to take actions deemed necessary
to limit global warming to 2°C.

Cox won his lawsuit by invoking
decades of official statements affirming
the reality of the climate “crisis” andHorner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

necessity for “climate action.” As he
explained:

The court first of all recognizedthat the stipulations included in
the UNFCCC, the Kyoto Protocol
and the no-harm principle ofinternational law do not have abinding force. … [However,] thecourt found that the stipulations
included in the UNFCCC, theKyoto Protocol and the no-harmprinciple of international law
need to be taken into accountwhen determining the state’s dutyof care in relation to climatechange …111

Cox enthuses: “The decision of the
Dutch court in Urgenda v. The State of
the Netherlands creates new angles forusing a tort-law as an approach against
governmental inaction to address
climate change.”112 The lesson for
Trump is clear. Words matter and cheap
environmental virtue can be costly.
In the United States, Justice Anthony
Kennedy has turned to international

opinions and other sources for guidance,
and Justice Stephen Breyer has
defended the propriety of using such
sources in U.S. jurisprudence.113 It is
entirely possible the lower courts will
provide them another chance to applythat perspective before they retire.
Certainly activist state attorneys
general intend to act. Using state
open records laws, the Energy andEnvironment Legal Institute obtained
a March 7, 2016 recruiting letter sent
by New York Attorney General Eric
Schneiderman and Vermont AG Eric
Sorrell, which stated:
The commitments of the UnitedStates and other nations at lastyear’s Paris climate change
conference are very significant
steps forward, but states must stillplay a crucial role in ensuring thatthe promises made in Paris
become reality. … That’s why webelieve that this is the moment for
Attorneys General who share thismission … to discuss ongoing andpotential legal actions and to
consider mechanisms to support
these actions.114

Following this pitch, at a March 29,
2016 press conference in Manhattan,
Al Gore, Schneiderman, seven otherAGs, and legal representatives from 11
states announced the formation of AGs
United for Clean Power, a coalition
proposing to “investigate” fossil fuelcompanies and their allies for allegedly“misleading” the public on climatechange.115 Some of the AGs had alreadyinitiated investigations of ExxonMobilfor its opposition to the climate
agenda. Suing to require compliancewith the Paris Agreement is hardly astretch for such committed activists.
Indeed, E&E Legal had previously
obtained from the New York attorney
general’s office the draft “Factual

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

31

Background” sections of a complaint,
clearly targeting federal agencies,
citing the litany of supposedly
aspirational, hortatory agreementsbuilding on the UNFCCC.116

These AGs have explored numerous
fronts. Other emails obtained by E&E
Legal reveal that AGs United consulted
with Michael Burger, executive directorof the Sabin Center for Climate Change
Law at the Columbia University law
school. In a January 2016 report,
Burger and several coauthors argue
that the Paris Agreement “provides astrong basis” for invoking a “powerful”
but seldom-used provision of the
Clean Air Act, Section 115, to compel
greenhouse gas emission reductions
across all sectors of the U.S. economy.117

Section 115 of the Clean Air Act
authorizes the EPA to control U.S.
emissions contributing to “air pollution”
in another country, but only if theagency determines the other country istaking or will take comparable actions
to curb emissions contributing to such
air pollution. Burger argues that theParis Agreement, with its quantified
NDCs and “enhanced transparency
framework,” satisfies the requisite“reciprocity determination.” Under
Section 115, states reduce their“international air pollution” bymodifying the state implementationplans they adopted to meet national
ambient air quality standards (NAAQS).

32

All of this is dubious because there areno NAAQS for carbon dioxide andother greenhouse gases, althoughenvironmental advocacy groups havetoyed with the idea of trying to force
their creation.118 Thus, Section 115
may have no lawful application togreenhouse gases until the EPA
promulgates NAAQS for greenhousegas emissions.

Moreover, if a Section 115 petition
actually succeeded in turning Obama’s
NDC into legally binding requirements,
the political backlash would be evenstronger than that triggered by the
Clean Power Plan. As attorney Brian
Potts commented in Politico:
But if the Republican reaction to
Obama’s other environmental
regulations is any indication, theywould freak out. Even some
Democrats would likely beconcerned at the federal
government’s intrusion into
powers traditionally reserved forthe states. Through the completionof an international climate deal,
this plan would effectively allow
the president to sidestep Congress
and take full control over each[state’s] energy sector. It would
give the White House enormous
power. States’ rights activists
would rightly scream bloody
murder.119

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

Nonetheless, litigation groups arepoised to demand that the EPA use
Section 115 to require domestic
emission reductions at least as
aggressive as those undertaken byother parties to the Paris Agreement.
Withdrawing from the Paris Agreement
would not preclude such litigation but
would make it less likely to succeed.
Even the most activist judges would
think twice about citing an Agreementfrom which the United States had
withdrawn.

Finally, as a general matter, staying in
the Paris Agreement will increase
litigation risk by influencing U.S.
domestic politics. Courts do not decideclimate-related regulatory and tort cases
in a political vacuum. As the saying
goes, even judges read the New YorkTimes. Retaining the Paris Agreement
as an official U.S. commitment can
only increase the likelihood that courts
will reach decisions in accord withthose “commitments.”
Withdrawal Options
The Paris Agreement entered into
force on November 4, 2016.120 That
date is significant for evaluating
withdrawal options.

There are three principal options,which we will call 1) Paris Only,
2) Paris Plus UNFCCC, and
3) Advice and Consent.

Paris Only. Under Article 28 of theParis Agreement, a party that wishes
to withdraw must wait at least three
years after the pact’s entry into force
before submitting a written notification
to the depositary, the U.N. Secretary
General. Withdrawal takes effect one
year after the depositary receives thenotification. Thus, the earliest President
Trump could cancel America’s
participation in the Paris treaty via
this option would be November 4, 2020,
near the end of his term. This approach
would ensure almost four years of“diplomatic blowback” pushing him
to reverse that decision. As noted, notpursuing any option ensures endless
blowback, by design.

Staying in the
Paris Agreement
will increase
litigation risk by
influencing U.S.
domestic politics.

Also, were Trump to pursue the Paris
Only approach, and lose his reelection
bid, his successor could claim tounilaterally rejoin the pact. Even if
Trump were to win reelection, the nextpresident might still reactivate the
Obama policy in 2025. Thus, thisoption would not resolve the issue.
Paris Plus UNFCCC. Article 28 further

states: “Any Party that withdraws fromthe Convention [UNFCCC] shall beconsidered as also having withdrawn
from this Agreement.” The UNFCCC
similarly requires a party to wait three
years before submitting a withdrawal
notification, and wait another year
before withdrawal takes effect.
However, the UNFCCC waiting
period ended in May 1997, so Trump

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

33

Gaining
approval fortreaties is hard,
intentionally,and signing but
not ratifying
treaties is
not unusual.

could immediately submit a notificationof withdrawal. America would be outof the UNFCCC and Paris Agreement
one year later—by April 2018. The“diplomatic blowback” would be aone-off and, if done soon, would be in
the rearview mirror by mid-2018.

Advice and Consent. Gaining approval
for treaties is hard, intentionally, andsigning but not ratifying treaties is
not unusual. President Trump could
submit the Paris Agreement to the
Senate and ask for its advice andconsent. There is no chance two-thirds
of Senators would support ratification.
Thus, the Paris treaty would join
400-plus other treaties the UnitedStates signed but did not ratify.
The Advice and Consent option can be
combined with either of the otherwithdrawal options.
We now briefly assess these approaches’
comparative benefits and risks.

Paris Only takes four years to complete.
It would allow a future president to
put America back into the Agreementby same means Obama purported tojoin—with the stroke of a pen.
Paris Plus UNFCCC takes one year tocomplete. It would require a futurepresident to obtain the Senate’s
consent to re-ratify the UNFCCC in
order to rejoin the Paris Agreement.
As Steven Groves of the Heritage
Foundation notes: “[W]ithdrawing will
prevent future Administrations from34

using the existing UNFCCC framework
to avoid Senate advice and consent in
the treaty process as required by
Article II Section 2 of the U.S.
Constitution.”121
Another point in favor of Paris Plus
UNFCCC is that the scripted“blowback” likely will be
indistinguishable whether Trump
withdraws from both pacts or just theParis Agreement. Thus, Paris Plus
UNFCCC is the quicker and more
durable withdrawal option for thesame PR pain.

Paris Plus UNCCC is also the superior
option due to an unexpected legal
complication. It is longstanding U.S.
policy that Palestinian statehood is amatter to be negotiated by Israel and
the Palestinians, not imposed on Israelby the United Nations. To put teeth
into that policy, Congress prohibited
the U.S. government from funding any
U.N. agency that “accords the Palestine
Liberation Organization the same
standing as member states” (Public Law
101-246) or “grants full membership asa state in the United Nations to any
organization or group that does nothave the internationally recognizedattributes of statehood” (Public Law
103-236).122
On December 18, 2015, the Palestinian
Authority submitted its instruments ofaccession to the UNFCCC, and on
March 17, 2016, the “State of Palestine”
was accepted as a full member. Under

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

U.S. law, therefore, all U.S. government
funding for the UNFCCC should stop.
The funding prohibitions dovetail withcandidate Trump’s promise not only to“cancel” U.S. participation in the Paris
Agreement but also “stop all paymentof U.S. tax dollars to U.N. global
warming programs.”
It makes little sense to stay in the
UNFCCC once the U.S. terminates
funding for the U.N. agency thatadministers it. In addition, as a party
to the treaty, America cannot stop
payments to the UNFCCC without
going into arrears on financial
commitments to the U.N. Thus,
withdrawing from the UNFCCC
would avoid the conflict between
U.S. financial commitments under thetreaty and the requirements of U.S. law.

A potential downside of Paris Plus
UNFCCC is that although the Paris
Agreement is highly controversial, the
UNFCCC is not. Many people areunaware of its existence. A Republicanadministration negotiated the UNFCCC.
Many Republicans who opposed the
Kyoto Protocol have professed support
for the UNFCCC. Thus, withdrawing
from the UNFCCC is more easily
attacked as “extreme” than withdrawing
from the far more ambitious Paris
Agreement.

However, the UNFCCC, as amended
by the Paris Agreement, has beentransformed into a very different treaty
from the pact the United States ratified

in 1992. The Senate gave its consent
to the UNFCCC on the condition thatany decision by the Conference of theParties to adopt targets and timetables
would be submitted for its advice
and consent as well. In the Paris
negotiations, the Conference not only
announced its decision to adopt targets
under agreed timetables, in the form of
NDCs, it collaborated with Obama to
bypass Senate review. The Conference
has abandoned the condition and sharedassumptions on which the United States
joined the UNFCCC, leaving theadministration no real option but towithdraw.

The Advice and Consent option would
clearly expose the Paris Agreement’s
lack of political support, allow the
Senate to reclaim its constitutionalrole in the treaty-making process, andclarify for the public the extent of the
Obama administration’s unauthorized
executive lawmaking.

The UNFCCC,
as amended
by the Paris
Agreement, hasbeen transformed
into a very
different treaty
from the pact
the United States
ratified in 1992.

Of course, Advice and Consent would
require Republican Senators to debate
climate policy on the merits, which
will entail expending political capital.123

However, regardless of whether the
Senate holds a ratification debate,
Trump should formally withdraw fromthe Paris Agreement under one of the
two Article 28 procedures. That is
the only way to avoid further legal
controversy on whether America is inor out of the treaty. In addition, good
relations with the nearly 200 other

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

35

The Paris
Agreement is
no mere“update” ofthe UNFCCC.

governments participating in the Paris
negotiations suggests that withdrawal
is better carried out through theprescribed procedures.
Conclusion
Americans expect their government tohonor its commitments, whether
deemed binding or not. To paraphrase
the GEICO ad, “When you’re theUnited States, you keep your promises;
it’s what you do.” With that in mind,
the Constitution provides a process
for vetting proposed international
agreements with potentially farreaching consequences.
To claim he properly committed the
U.S. to the Paris Agreement, President
Obama pretended that way back in
1992, when the Senate consented to
ratification of the U.N. Framework
Convention on Climate Change, it also
authorized unknown future executives
to commit the United States toundertakings of far greater cost andrisk. However, even if the Senate
Foreign Relations Committee reportaccompanying UNFCCC ratification
had never stipulated that the Senate
must review any decision by the
Conference of the Parties to adopt
targets and timetables, such as the
mandatory NDCs that are the central
feature of the Paris Agreement, it isinconceivable that when the Senate
ratified the UNFCCC in 1992 it gave
future presidents carte blanche to make36

costly and prescriptive legislative
commitments without obtaining the
Senate’s advice and consent.

The Paris Agreement is no mere
“update” of the UNFCCC. Given its
prescriptiveness, ambition, costs,
risks, dependence on subsequent
legislation by Congress, and intent toaffect state laws, the Paris Agreement—
no less than the Kyoto Protocol and in
key respects more so—is a whole
new treaty. Alternatively, the Paris
Agreement amends the UNFCCC intoa very different treaty from that which
the United States ratified. Either way,it purports to commit the U.S. totreaty-like obligations without
Senate approval.
If allowed to stand as precedent,
Obama’s end-run around the treaty
making process, along with the implicit
assertion that the executive canunilaterally decide whether or not anagreement is subject to Senate review,
would undermine one of theConstitution’s most important
checks and balances.

Far from being toothless, the Paris
Agreement would compel U.S. leaders

to continually negotiate domestic energy
policy with a coalition of foreign
governments, multilateral agencies,and environmental pressure groups, allexaggerating climate change risks, andall demanding urgent action to restrict
America and the world’s access toaffordable, plentiful, reliable carbon-

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

based energy. It is designed to do thisin perpetuity, and cannot be remediedby various “tweaks” that have beensuggested.

Remaining in the Paris Agreement
would undermine President Trump’s
energy agenda, endanger America’s
economic future, and grow theadministrative state at the expense ofrepresentative government. It will
enrich autocrats and rent-seekers
without making a detectable dent on
the alleged climate crisis. Worse, its
mid-century emission reduction goalcannot be achieved without puttingenergy-poor nations on an energy diet.

To safeguard America’s economic
future and capacity for self-government,
President Trump should pull out of theParis Agreement. There are several
options for doing so, which are
discussed above. Regardless of which
option Trump selects, his administration
should make the case for withdrawal
based on the following key points:
1. The Paris Agreement is atreaty by virtue of its costs andrisks, ambition compared topredecessor climate treaties,
dependence on subsequent
legislation by Congress, intent
to affect state laws, U.S.
historic practice with regard
to multilateral environmental
agreements, and othercommon-sense criteria.

2. In America’s constitutional
system, treaties must obtain
the advice and consent of the
Senate before the UnitedStates may lawfully join them.
President Obama deemed theParis Agreement to not bea treaty in order to evadeconstitutional review, which
the Agreement almost
certainly would not havesurvived.
3. Allowing Obama’s climate
coup to stand will set a
dangerous precedent thatwill undermine one of theConstitution’s most important
checks and balances. It willallow the president to adopt
any treaty he and foreign
elites want, without Senate
ratification, just by deeming
it “not a treaty.”
4. The Agreement endangers
America’s capacity for
self-government. It empowers
one administration to makelegislative commitments for
decades to come, without
congressional authorization,and regardless of the outcomeof future elections. It would
also make U.S. energy policies
increasingly unaccountable tovoters, and increasingly
beholden to the demandsof foreign leaders, U.N.

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

37bureaucrats, and internationalpressure groups.
5. The United States cannot
comply with the Paris
Agreement and pursue a
pro-growth energy agenda.
Affordable, plentiful, reliableenergy is the lifeblood ofmodern economic life. Yet,the Paris Agreement’s central
goal is to make fossil fuels,
America’s most plentiful andaffordable energy source, more
expensive across the board.
Implementing President
Obama’s NDC would destroy
U.S. manufacturing’s energy
price edge.
6. The Agreement entails morecost and risk than the country
is willing to bear. A majorityof states have sued to overturnthe Obama EPA’s end-run
around Congress, the Clean
Power Plan, which is also thecenterpiece of the U.S. NDC
under the Paris Agreement. Yet,
the CPP is only a start. All of
Obama’s adopted and proposed
climate policies would only
achieve about 51 percent ofjust the first NDC, and theParis Agreement requires
parties to promise more“ambitious” NDCs every
five years.

38

7. The Agreement has no
democratic legitimacy.
President Obama kept mum
about climate change during
the 2012 elections. Only after
being reelected did he unveil aclimate agenda featuring an
EPA-redesigned electric
power system and the most“ambitious” climate agreementin history.
8. Withdrawing from the Paris
Agreement is a humanitarian
imperative. The Agreement
will produce no detectableclimate benefits. Instead, it
will divert trillions of dollars
from productive investmentsthat would advance global
welfare to political uses. Worse,
the Agreement’s mid-century
emission-reduction goals
cannot be achieved without
drastically reducing energypoor countries’ current accessto affordable energy fromfossil fuels.
For all the foregoing reasons,President Trump should stick to his
campaign promises to end America’s
participation in the Paris Climate
Agreement and stop payments to the
U.N. Green Climate Fund.

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

NOTES
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Andrew Freedman, “Trump backs away from pledge to ‘cancel’ Paris Agreement,” Mashable, November 22, 2016,
http://mashable.com/2016/11/22/trump-climate-paris-agreement-nyt-interview/#E._iyMrrqqqE.
The Clean Power Plan is the centerpiece of President Obama’s climate policy agenda, his Climate Action Plan. The Power Plan
and the Paris Agreement rank among Obama’s “legacy” policies. Executive Office of the President, The President’s Climate
Action Plan, June 2013, https://obamawhitehouse.archives.gov/sites/default/files/image/president27sclimateactionplan.pdf. U.S.
Environmental Protection Agency, Clean Power Plan for Existing Power Plants,
https://www.epa.gov/cleanpowerplan/clean-power-plan-existing-power-plants. The White House,
Office of the Press Secretary, “Remarks by the President on the Paris Agreement,” October 5, 2016,
https://obamawhitehouse.archives.gov/the-press-office/2016/10/05/remarks-president-paris-agreement.
U.S. Constitution, Article II, Section 2, Clause 2, The Heritage Guide to the Constitution, Treaty Clause,
http://www.heritage.org/constitution/#!/articles/2/essays/90/treaty-clause.
U.S. Nationally Determined Contribution,
http://www4.unfccc.int/submissions/INDC/Published%20Documents/United%20States%20of%20America/1/U.S.%20Cover%2
0Note%20INDC%20and%20Accompanying%20Information.pdf. “This target is consistent with a straight line emission
reduction pathway from 2020 to deep, economy-wide emission reductions of 80% or more by 2050. The target is part of a longer
range, collective effort to transition to a low-carbon global economy as rapidly as possible.”
Steven Groves, The Paris Agreement Is a Treaty and Should Be Submitted to the Senate, Backgrounder No. 3103, Heritage Foundation,
March 15, 2016, http://www.heritage.org/environment/report/the-paris-agreement-treaty-and-should-be-submitted-the-senate.
U.S. Department of State, Foreign Affairs Manual 11—Political Affairs, Circular 175 Procedure,
http://www.state.gov/documents/organization/88317.pdf.
The White House, Office of the Press Secretary, “U.S. Leadership and the History Paris Agreement to Combat Climate Change,”
December 12, 2015,
https://obamawhitehouse.archives.gov/the-press-office/2015/12/12/us-leadership-and-historic-paris-agreement-combat-climate-change.
Coral Davenport, “A Climate Accord Based on Global Peer Pressure,” New York Times, December 14, 2014,
https://www.nytimes.com/2014/12/15/world/americas/lima-climate-deal.html?_r=0.
These include the Technology Mechanism, Compliance Related Mechanism, Forum on the Impact of the Implementation of
Response Measures, Subsidiary Body for Scientific and Technical Advice, Subsidiary Body for Implementation, Adaptation
Committee, Climate Technology Center and Network, and Capacity-Building Initiative for Transparency.
These include the Financial Mechanism, Compliance-Related Mechanism, Subsidiary Body for Implementation, Least
Developed Countries Expert Group, Adaptation Committee, Green Climate Fund, Warsaw Mechanism on Loss and Damage,
Global Environment Facility, Least Developed Countries Fund, Special Climate Change Fund, and Paris Committee on
Capacity-Building.
Coral Davenport, “A Climate Accord Based on Global Peer Pressure.”“Meet the Press,” Chuck Todd interview with Secretary of State John Kerry, December 13, 2015,
http://www.nbcnews.com/meet-the-press/meet-press-december-13-2015-n479241. Coral Davenport, “Nations Approve
Landmark Accord in Paris,” New York Times, December 12, 2015,
http://www.nytimes.com/2015/12/13/world/europe/climate-change-accord-paris.html?_r=0.
Coral Davenport, “Top Trump Advisers Are Split on Paris Agreement on Climate Change,” New York Times, March 2, 2017,https://www.nytimes.com/2017/03/02/us/politics/climate-change-trump.html?_r=0.
Evan Lehmann, “Ivanka and Jared saved the Paris Agreement—for now,” Climatewire, February 24, 2017,
http://www.eenews.net/climatewire/2017/02/24/stories/1060050512.
Executive Office of the President, The President’s Climate Action Plan, June 2013,https://obamawhitehouse.archives.gov/sites/default/files/image/president27sclimateactionplan.pdf.
The White House, Office of the Press Secretary, “Presidential Executive Order on Promoting Energy Independence andEconomic Growth,” March 28, 2017,https://www.whitehouse.gov/the-press-office/2017/03/28/presidential-executive-order-promoting-energy-independence-and-economi-1.
Coral Davenport, “Top Trump Advisers Are Split on Paris Agreement on Climate Change.”
Daniel W. Drezner, “Benjamin Netanyahu’s blinkered view of American politics,” Washington Post, February 25, 2015,
https://www.washingtonpost.com/posteverything/wp/2015/02/25/benjamin-netanyahus-blinkered-view-of-americanpolitics/?utm_term=.b115a818b5cb.
Alex Pashley, “Gina McCarthy: U.S. climate plan will stand test of time,” The Guardian, December 10, 2015,
https://www.theguardian.com/environment/2015/dec/10/gina-mccarthy-us-climate-plan-will-stand-test-of-time.

Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

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20

21

22
23
24
25

26
27
28

29
30
31
32

33
34
35

36
37

38

40

U.S. State Department, 2016 Second Biennial Report of the United States of America under the United Nations Framework
Convention on Climate Change,
http://unfccc.int/files/national_reports/biennial_reports_and_iar/submitted_biennial_reports/application/pdf/2016_second_bienni
al_report_of_the_united_states_.pdf. Stephen D. Eule, “Obama Administration Confirms ‘Gap’ in Paris Emissions Pledge,” U.S.
Chamber Institute for 21st Century Energy, http://www.energyxxi.org/obama-administration-confirms-gap-paris-emissions-pledge.
“Sen. Jim Inhofe (R-Okla.), perhaps the most vociferous doubter of man-made warming in the Senate, told E&E News last weekthat Paris is so ineffectual it doesn’t require Congress or the administration to undertake a formal withdrawal. ‘It really is hardly
worth even addressing,’ he said. ‘This is not a binding thing.’ A presidential statement walking back the U.S. commitment would
be enough to dispatch the issue, Inhofe said.” Jean Chemnick, “Trump team being pulled in two directions on climate pact,”
Climatewire, February 7, 2017, http://www.eenews.net/climatewire/2017/02/07/stories/1060049647.
Even if all countries implement their NDCs as promised, and there is no carbon leakage, the total temperature reduction will be
0.048°C by 2100. Bjorn Lomborg, “Impact of Current Climate Proposals,” Global Policy, Vol. 7, Issue 1 (February 2016),
pp. 109–118, http://onlinelibrary.wiley.com/doi/10.1111/1758-5899.12295/full.
See Bjorn Lomborg’s expanded figure comparing the amount of social, economic, and environmental benefit per dollar invested
in different development policies during 2016-2030. Bjorn Lomborg, “Post-2015 Consensus,” The Economist Special Online
Supplement, http://www.copenhagenconsensus.com/post-2015-consensus/economist.
Stephen D. Eule, “The European Union’s 2050 Global Greenhouse Gas Emissions Goal Is Unrealistic,” Institute for 21st Century
Energy, May 20, 2015, http://www.energyxxi.org/european-unions-2050-global-greenhouse-gas-emissions-goal-unrealistic.
“Analysis: The 1.5°C Solution?” Institute for 21st Century Energy, April 20, 2016,
http://www.energyxxi.org/analysis-15%C2%B0c-solution.
Andrew Restuccia, “Trump advisers want concessions for coal if U.S. stays in climate pact,” Politico, March 17, 2017,
http://www.politico.com/story/2017/03/trump-climate-pact-coal-concessions-236196.
Marlo Lewis, “Carbon Capture and Storage: Adequately Demonstrated?” GlobalWarming.Org, March 31, 2016,
http://www.globalwarming.org/2016/03/31/carbon-capture-and-storage-adequately-demonstrated/.
Competitive Enterprise Institute, “Global Warming Resolution Marks 10th Anniversary,” news release, July 25, 2007,https://cei.org/news-releases/global-warming-resolution-marks-10th-anniversary.
Greg Kahn, “The Fate of the Kyoto Protocol under the Bush Administration,” Berkeley Journal of International Law, Vol. 21,
Issue 3, Article 5 (2003), http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1248&context=bjil.
United Nations Framework Convention on Climate Change, Kyoto Protocol—Status of Ratification,
http://unfccc.int/kyoto_protocol/status_of_ratification/items/2613.php.
Rupert Darwall, “Will Trump Stand Up to the World on Climate-Change Policy?” National Review Online, February 22, 2017,
http://www.nationalreview.com/article/445121/donald-trump-paris-climate-agreement-teachable-moment-europe.
Press Briefing by National Security Advisor Condoleezza Rice on the President’s Travel to Europe, June 6, 2001,
http://www.presidency.ucsb.edu/ws/?pid=78897.
Andrew Light and David Waskow, “Diplomatic blowback of US climate retreat may hurt Trump,” Climate Change News,
January 26, 2017, http://www.climatechangenews.com/2017/01/26/diplomatic-blowback-of-us-climate-retreat-may-hurt-trump/.
Coral Davenport, “Diplomats Confront New Threat to Paris Climate Pact: Donald Trump,” New York Times, November 18, 2016,
https://www.nytimes.com/2016/11/19/us/politics/trump-climate-change.html. Rupert Darwall, The Age of Global Warming: A
History (London: Quartet Books Limited, 2013), p. 282.
William Yeatman, “On Climate Change, Obama Duped the American Public,” GlobalWarming.Org, December 1, 2015,
http://www.globalwarming.org/2015/12/01/on-climate-change-obama-duped-the-american-public/.
The White House, Office of the Press Secretary, Press Call Briefing on the Paris Climate Change Summit, November 24, 2015,
https://obamawhitehouse.archives.gov/the-press-office/2015/11/24/press-call-briefing-paris-climate-change-summit.
The Copenhagen Accord was the culmination of a two-year negotiating process launched by the 13th Conference of the Parties inBali, Indonesia. The United States, the European Union, several small island states, and environmental non-governmentalorganizations had high hopes of negotiating a treaty with legally binding emission reduction targets. China, Venezuela, and a few
other developing countries derailed that expectation by refusing to accept binding climate requirements. Reuters, “British PM
blames China for lack of treaty,” Climatewire, December 22, 2009,http://www.eenews.net/climatewire/stories/85944/search?keyword=Copenhagen+Accord. Some question whether the
Copenhagen Accord even qualifies as an official U.N. agreement, because nations only committed to “take note” of the accord
rather than than ratify it. Nathanial Gronewald, “U.N. chief declares accord ‘significant achievement,’” Greenwire, December 21,
2009, http://www.eenews.net/greenwire/stories/85937/search?keyword=Copenhagen+Accord.
EPA email, “Final Endangerment Finding for Greenhouse Gases under the Clean Air Act,” Draft Deliberative, December 2009.
Coral Davenport, “Obama Pursuing Climate Accord in Lieu of Treaty”, New York Times, August 26, 2014,
https://www.nytimes.com/2014/08/27/us/politics/obama-pursuing-climate-accord-in-lieu-of-treaty.html.
“Climate Deal Must Avoid US Congress Approval, French Minister Says,” The Guardian, June 1, 2015,
http://www.theguardian.com/world/2015/jun/01/un-climate-talks-deal-us-congress.

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41
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43
44
45
46

47
48

49
50

51
52
53
54

55
56

57
58
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60

61

62
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Valerie Richardson, “White House defends Obama evading Senate on climate deal,” Washington Times, August 29, 2016,
http://www.washingtontimes.com/news/2016/aug/29/obama-will-bypass-senate-ratify-paris-climate-acco/.
Individual screenshots are available at E&E Legal’s FOIA page under “FOIA’d State Department E-mails Relevant to ‘Legal
Form’ of Paris,” https://eelegal.org/rico-related-foia-documents/.
“Paris climate deal will not be a legally binding treaty,” Financial Times, November 11, 2015,
https://www.ft.com/content/79daf872-8894-11e5-90de-f44762bf9896.
Anne-Sylvaine Chassany and Pilita Clark, “France bows to Obama and backs down on climate ‘treaty,’” Financial Times,
November 28, 2015, http://www.cnbc.com/2015/11/28/france-bows-to-obama-and-backs-down-on-climate-treaty.html.
United Nations Climate Change Secretariat, “The Paris Agreement: Next Steps,” January 29, 2016,
http://unfccc.int/files/meetings/paris_nov_2015/application/pdf/paris_agreement_next_steps_post_adoption.pdf.
Stephen Collinson, “Iran Deal: A treaty or not a treaty, that is the question,” CNN, March 12, 2015,
http://www.cnn.com/2015/03/12/politics/iran-nuclear-deal-treaty-obama-administration/.
Iran Nuclear Agreement Review Act of 2015 (S.615), 114th Congress,
https://www.congress.gov/bill/114th-congress/senate-bill/615.
Ted Barrett, Manu Raju, Deirdre Walsh, and Tom LoBianco, “Senate Democrats protect Obama on Iran vote,” CNN, September 10,
2015, http://www.cnn.com/2015/09/10/politics/iran-nuclear-deal-vote-congress/index.html.
Patrick Goodenough, “Kerry: Iran Deal Not a Treaty Because ‘You Can’t Pass a Treaty Anymore,’” CNSNews.Com, July 29, 2015,
http://www.cnsnews.com/news/article/patrick-goodenough/kerry-iran-deal-not-treaty-because-you-cant-pass-treaty-anymore.
John B. Bellinger III, “Without White House muscle, treaties left in limbo,” Washington Post, June 11, 2010,
http://www.washingtonpost.com/wp-dyn/content/article/2010/06/10/AR2010061004356.html.
Rodolfo Quenvenco, “United States Ratifies Key Nuclear Security Amendment,” International Atomic Energy Agency, July 31,
2015, https://www.iaea.org/newscenter/news/united-states-ratifies-key-nuclear-security-amendment. Andrew McCarthy, “Kerry
Claims ‘You Can’t Pass a Treaty Anymore’ Two Days before U.S. Ratifies a Treaty,” National Review Online, August 4, 2015,
http://www.nationalreview.com/corner/422035/kerry-claims-you-cant-pass-treaty-anymore-two-days-us-ratifies-treaty-andrew-c.
Coral Davenport, “U.N. Signals that Climate Deal Has Backing Needed to Enter Force,” New York Times, September 20, 2016,
https://www.nytimes.com/2016/09/21/world/americas/united-nations-climate-change.html.
Library of Congress, The Federalist Papers, Federalist No. 75, http://thomas.loc.gov/home/histdox/fed_75.html.
Ibid.
U.S. Nationally Determined Contribution,
http://www4.unfccc.int/submissions/INDC/Published%20Documents/United%20States%20of%20America/1/U.S.%20Cover%2
0Note%20INDC%20and%20Accompanying%20Information.pdf.
Library of Congress, The Federalist Papers, Federalist No. 63,
https://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-63.
Green Climate Fund executive director Hela Cheikhrouhou thinks climate finance should reach $450 billion annually by 2020.
Alyster Doyle, “New UN climate fund to take risks to promote green tech,” Reuters, June 5, 2015,
http://www.reuters.com/article/climatechange-funds-idUSL5N0YR23F20150605.
Laird Wilcox and John George, eds., Be Reasonable: Selected Quotations from Inquiring Mindss: An Authoritative Source(New York: Prometheus Books, 1994), p. 100.
Bjorn Lomborg, “Post-2015 Consensus.”
Author’s Analysis, http://data.myworld2015.org/. The Paris Agreement’s popularity among governments is not hard to explain.
Developing country governments expect to gain trillions dollars in “climate finance” wealth transfers. Industrial governments
expect to increase their control over energy markets and investments.
Allan Gerson, The Kirkpatrick Mission: Diplomacy without Apology: America at the United Nations, 1981-85 (New York:The Free Press, 1991).
Alex Pashley, “Gina McCarthy: U.S. climate plan will stand test of time,” The Guardian, December 10, 2015,
https://www.theguardian.com/environment/2015/dec/10/gina-mccarthy-us-climate-plan-will-stand-test-of-time.
Much of the following discussion is drawn from Marlo Lewis Jr., “The Paris Agreement Is a Treaty Requiring Senate Review,”
On Point No. 213, Competitive Enterprise Institute, February 24, 2016,
https://cei.org/content/paris-climate-agreement-treaty-requiring-senate-review, and Steven Groves, “The Paris Agreement Is a
Treaty and Should Be Reviewed by the Senate.”
Confidential Presidential Review Directive, Global Climate Change Policy Decision Paper, Document No. C05343580,
Unclassified January 7, 2015,
http://nsarchive.gwu.edu/NSAEBB/NSAEBB537-Clinton-White-House-Frustrated-in-Attempts-to-Forge-US-Global-Leadershipon-Climate-Change-in-1990s/documents/Document%201.pdf.
Hearing of the Senate Committee on Foreign Relations, Subcommittee on Near East and Asia-International Climate Change
Negotiations Panel I, November 13, 2007,https://votesmart.org/public-statement/304816/hearing-of-the-senate-committee-on-foreign-relations-subcommittee-on-near-eastand-asia-international-climate-change-negotiations-panel-i#.WKM-oxiZNBw.

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Andrew Revkin, “Bush Climate Plan: Amid Nays, Some Maybes,” New York Times, June 4, 2007,
http://www.nytimes.com/2007/06/04/washington/04climate.html?_r=0. Amber Phillips, “Congress’s long history of doing
nothing on climate change, in six acts,” Washington Post, December 1, 2015,
https://www.washingtonpost.com/news/the-fix/wp/2015/12/01/congresss-long-history-of-inaction-on-climate-change-in-6parts/?utm_term=.a954bdca5256.
Andrew Restuccia, “The one word that almost sank the climate talks,” Politico, December 12, 2015,
http://www.politico.com/story/2015/12/paris-climate-talks-tic-toc-216721.
Joshua Keating, “The One Word that Almost Scuttled the Climate Deal,” Slate, December 14, 2015,
http://www.slate.com/blogs/the_slatest/2015/12/14/climate_deal_came_down_to_the_difference_between_shall_and_should.html.
Suzanne Goldenberg, “How US negotiators ensured landmark Paris climate deal was Republican-proof,”
The Guardian, December 13, 2015,
https://www.theguardian.com/us-news/2015/dec/13/climate-change-paris-deal-cop21-obama-administration-congressrepublicans-environment.
United Nations Framework Convention on Climate Change, Conference of the Parties 21st Session, Paris, November 30-December 11,
2015, Agenda item 4(b), Durban Platform for Enhanced Action (decision 1/CP.17), Adoption of a protocol, another legal
instrument, or an agreed outcome with legal force under the Convention applicable to all Parties,
https://unfccc.int/resource/docs/2015/cop21/eng/l09.pdf.
The U.S INDC translates into a Kyoto Protocol target of 12-19 percent below 1990 levels. The U.S. Kyoto Protocol target was
5 percent below 1990 levels. Climate Action Tracker, http://climateactiontracker.org/countries/usa.html.
Center for American Progress, “Paris Climate Agreement May Not Require Congressional Approval, CAP Report Says,”news release, July 7, 2015,
https://www.americanprogress.org/press/release/2015/07/07/116921/release-paris-climate-agreement-may-not-requirecongressional-approval-cap-report-says/.
Coral Davenport, “Nations Approve Landmark Climate Accord in Paris.”
Marrakesh Declaration, XV.5(a), http://unfccc.int/cop7/documents/accords_draft.pdf.
Hannah Chang, “A ‘Legally Binding’ Climate Agreement: What Does It Mean? Why Does It Matter?” Earth Institute,
Columbia University, February 23, 2010,
http://blogs.ei.columbia.edu/2010/02/23/a-%E2%80%9Clegally-binding%E2%80%9D-climate-agreement-what-does-it-meanwhy-does-it-matter/.
National Public Radio, “A User’s Guide to the Climate Change Talks,” December 4, 2011,
http://www.npr.org/2011/12/04/143095299/whats-at-stake-in-south-africa-climate-talks.
S. Exec. Rept. 102-55, 102d Cong., 2d Sess. (1992), at 14
USA First NDC Submission, UNFCCC,
http://www4.unfccc.int/ndcregistry/PublishedDocuments/United%20States%20of%20America%20First/U.S.A.%20First%20ND
C%20Submission.pdf.
S. Exec. Rept. 102-55, 102d Cong., 2d Sess. (1992).
United Nations Framework Convention on Climate Change, Art. 4.2(a), also cited in 12.2(a) and (b).
U.S. Constitution, Article I, Section 1: “All legislative Powers herein granted shall be vested in a Congress of the United States,
which shall consist of a Senate and House of Representatives.”
Tim Haines, “John Kerry Explains Why Iran Deal Is Not Legally a Treaty: ‘You Can’t Pass a Treaty Anymore,” Real Clear
Politics, July 29, 2015,
http://www.realclearpolitics.com/video/2015/07/29/john_kerry_explains_why_iran_deal_is_not_a_treaty_you_cant_pass_a_treaty_anymore.html.
Dave Boyer, “Obama, Chinese president, ratify climate-change agreement,” Washington Times, September 3, 2016,
http://www.washingtontimes.com/news/2016/sep/3/obama-xi-ratify-climate-change-agreement/.
U.S. Department of State, Texts of Agreements to Which the United States Is a Party, https://www.state.gov/s/l/treaty/tias/.
Marlo Lewis, “Precedent on Environmental Pacts: Treaty or ‘Executive Agreement’?” Competitive Enterprise Institute Blog,
September 8, 2016, https://cei.org/blog/precedent-environmental-pacts-treaty-or-executive-agreement.
Lavanya Rajamani, “The Durban Platform for Enhanced Action and the Future of the Climate Regime,” International &Comparative Law Quarterly, Vol. 61, Issue 2 (April 2012), pp. 501-518,
https://www.cambridge.org/core/journals/international-and-comparative-law-quarterly/article/div-classtitlethe-durban-platformfor-enhanced-action-and-the-future-of-the-climate-regimediv/79336B9BA7749EFF3034687167567ADA.
Like many modern trade deals, the North American Free Trade Agreement was negotiated as legislative-executive agreement
subject to approval by both chambers of Congress. James M. Smith, Daniel T. Shedd, Brandon J. Murrill, “Why Certain Trade
Agreements Are Approved as Congressional-Executive Agreements Rather than as Treaties,” Congressional Research Service,
April 2013, https://fas.org/sgp/crs/misc/97-896.pdf.
Steven Groves, “The Paris Agreement Is a Treaty and Should Be Submitted to the Senate.”

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European Commission, Climate Action: Kyoto 2nd Commitment Period (2013-2020),
https://ec.europa.eu/clima/policies/strategies/progress/kyoto_2_en.
88 Declaration of Todd Stern, State of West Virginia et al. v. United States Environmental Protection Agency et al.,
USCA Case #15-1363, December 3, 2015, http://www.globalwarming.org/wp-content/uploads/2015/12/TS-BS.pdf.
89 On February 9, 2016, the Supreme Court granted the application of 29 states for a stay on the Clean Power Plan, halting
enforcement of the rule during litigation on the merits—a process that could take years. Administration officials have been atpains to reassure the European Union, India, and China that the EPA will win the case and the United States can fulfill its INDC
even without the CPP. Coral Davenport, “Supreme Court’s Blow to Emissions Efforts May Imperil Paris Climate Accord,” NewYork Times, February 10, 2016, http://www.nytimes.com/2016/02/11/us/politics/carbon-emissions-paris-climate-accord.html?_r=0.
Nonetheless, judging from climate activists’ denunciation of Justice Roberts, they will undoubtedly invoke the Paris Agreement
as a reason courts must rule in favor of the EPA and uphold the CPP. See, for example, Joe Romm, “Will Justice Roberts Destroy
His Reputation and a Livable Climate at the Same Time?” Think Progress, February 9, 2016,
http://thinkprogress.org/climate/2016/02/09/3747972/john-roberts-climate/.
90 State of West Virginia, State of Texas, et al. v. U.S. Environmental Protection Agency, et al. Application by 29 States and State
Agencies for Immediate Stay of Final Agency Action During Pendency of Petitions for Review, January 26, 2016,
http://www.globalwarming.org/wp-content/uploads/2016/02/Final-States-SCOTUS- Stay-App-ACTUAL-M0116774xCECC6.pdf.
Peter S. Glaser and Carroll W. McGuffey, III, “Regulating Greenhouse Gases under the Clean Air Act: Is the Bubble about to
Burst?” George Washington University Journal of Energy & Environmental Law, Vol. 6, No. 3 (Winter 2016),
https://gwujeel.files.wordpress.com/2016/02/glaser_jeel_vol6_issue3.pdf. Mario Loyola, “EPA’s Unprecedented Power Grab,”
National Affairs, spring 2015, http://www.nationalaffairs.com/doclib/20150319_Loyola.pdf.
91 U.S. Constitution, Article I, Section 9: “No money shall be drawn from the treasury, but in consequence of appropriations madeby law.”
92 The White House, “FACT SHEET: President Obama’s 21st Century Clean Transportation System,” February 4, 2016,
https://www.whitehouse.gov/the-press-office/2016/02/04/fact-sheet-president-obamas-21st-century-clean-transportation-system.
93 Camille von Kaenel, “Obama Proposes $10-per-barrel Oil Tax to Fund Green Transit,” Scientific American, February 5, 2016,
http://www.scientificamerican.com/article/obama-proposes-10-per-barrel-oil-tax-to-fund-green-transit.
94 U.S. Constitution, Article I, Section 7: “All bills for raising revenue shall originate in the House of Representatives; but the
Senate may propose or concur with amendments as on other Bills.”
95 “As a matter of historical practice, some types of international agreements have traditionally been entered into as treaties in all ornearly every instance, including compacts concerning mutual defense, extradition and mutual legal assistance, human rights,
arms control and reduction, environmental protection, taxation, and the final resolution of boundary disputes.” Michael John
Garcia, “International Law and Agreements: Their Effect upon U.S. Law,” Congressional Research Service, February 18, 2015,
https://fas.org/sgp/crs/misc/RL32528.pdf. EPA, “Selected Multilateral Environmental Instruments in Force for the U.S.,”
https://www.epa.gov/international-cooperation/selected-multilateral-environmental-instruments-force-us.
96 S. Exec. Rept. 102-55, 102d Cong., 2d Sess. (1992).
97 Dean Scott and Anthony Adragna, “Senate Republicans Mull Options for Review of U.S. Participation in Paris Climate Talks,”
Bloomberg Energy and Climate Report, May 19, 2015, http://www.bna.com/senate-republicans-mull-n17179926673/.
98 United Nations Framework Convention on Climate Change, Adoption of the Paris Agreement, December 12, 2015,
https://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf.
99 Framework Convention on Climate Change, Report of the Conference of the Parties on its seventeenth session, held in Durban
from 28 November to 11 December 2011, 15 March 2012, http://unfccc.int/resource/docs/2011/cop17/eng/09a01.pdf#page=2
100 Press Call Briefing on the Paris Climate Change Summit, November 24, 2015,
https://obamawhitehouse.archives.gov/the-press-office/2015/11/24/press-call-briefing-paris-climate-change-summit.
101 The U.N. Framework Convention on Climate Change was ratified by the U.S. Senate on October 7, 1992, Congressional
Record, pp. 17149-17151.
102 Our analysis here follows that of Myron Ebell, “UN Framework Convention on Climate Change Secretariat Announces Steps for
Signing and Ratifying the Paris Climate Treaty. The Next Step Is Up To the Senate,” GlobalWarming.Org, January 29, 2016,
http://www.globalwarming.org/2016/01/29/un-framework-convention-on-climate-change-secretariat-announces-steps-forsigning-and-ratifying-the-paris-climate-treaty-the-next-step-is-up-to-the-senate/.
103 UNFCC, Adoption of a protocol, another legal instrument, or an agreed outcome with legal force under the Convention
applicable to all Parties, January 29, 2016.
104 UNFCCC—Paris Agreement, Status of Ratification, accessed March 27, 2017,
http://unfccc.int/paris_agreement/items/9444.php.
105 Jean Chemnick, “Trump team being pulled in 2 directions on climate pact,” E&E News, February 7, 2017,
http://www.eenews.net/special_reports/global_climate_debate/stories/1060049647.
106 Ibid.
107 Ibid.

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108 Lucas Bergkamp, “The hidden trigger of Paris: why the climate battle will now be taken to the courts,” Energy Post, January 6, 2016,
http://www.energypost.eu/hidden-trigger-paris-climate-battle-will-now-taken-courts/?utm_source=CP+Daily&utm_campaign=
74e0e3a469-CPdaily06012016&utm_medium=email&utm_term=0_a9d8834f72-74e0e3a469-96965953. (Citing: Michael Burger,“Failure To Take Climate Action Is Not Only Morally Wrong, It’s Illegal,” Climate Law Blog, Sabin Center for Climate Change
Law, Columbia University, November 30, 2015,
http://blogs.law.columbia.edu/climatechange/2015/11/30/failure-to-take-climate-action-is-not-only-morally-wrong-its-illegal, and
Sif Thorgeirsson and Ciara Dowd, “Post Paris climate talks, how to take charge through climate litigation,” Business & Human
Rights Resource Centre, undated, accessed April 21, 2017,
http://business-humanrights.org/en/post-paris-climate-talks-how-to-take-charge-through-climate-litigation#.)109 Hague District Court, Urgenda Foundation v. The State of the Netherlands, June 24, 2015, https://elaw.org/nl.urgenda.15.
110 Roger Cox, CIGI Papers No. 79, November 2015, “A Climate Change Litigation Precedent Urgenda Foundation v. The State of
The Netherlands, p. 2, https://www.cigionline.org/sites/default/files/cigi_paper_79web.pdf.
111 Ibid., p. 9.
112 Ibid., p. 4.
113 Robert J. Delahunty and John Yoo, “Against Foreign Law,” Harvard Journal of Law & Public Policy, Vol. 29, No. 1,
http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No1_Delahunty_Yoo.pdf. Stephen C. McCaffrey, “There’s a Whole Worldout There: Justice Kennedy’s Use of International Sources,” McGeorge Law Review, Vol. 44 (2013),
http://www.mcgeorge.edu/Documents/Publications/07_McCaffrey_ver01_6-25-12_FINAL.pdf
114 The two-page letter is available at https://eelegal.org/wp-content/uploads/2017/04/NY-OAG-filing-Exhibit-1-recruiting-ltr.png.
115 “Al Gore and Eric Schneiderman Launch AGs United for Clean Power Coalition,” Climate Reality Project Blog, March 30,
2016, https://www.climaterealityproject.org/blog/al-gore-and-new-york-attorney-general-eric-schneiderman-launch-ags-unitedclean-power-coalition.
116 Stephen Dinan, “Green-trigue: N.Y. legal memo may give Obama path to make climate deal binding,” Washington Times, August 28,
2014, http://www.washingtontimes.com/news/2014/aug/28/new-york-legal-brief-may-be-blueprint-for-obama-cl/?page=all.
Kimberley Strassel, “Don’t Wimp Out on Climate”, Wall Street Journal, February 17, 2017,https://www.wsj.com/articles/dont-wimp-out-on-climate-1487290672.
117 Michael Burger et al., Legal Pathways to Reducing Greenhouse Gas Emissions under Section 115 of the Clean Air Act,
Institute for Policy Integrity, Columbia Law School, The Emmet Institute, January 2016,
http://wordpress.ei.columbia.edu/climate-change-law/files/2016/06/Burger-et-al.-2016-01-Executive-Summary-Section-115-CAA.pdf.
118 Center for Biological Diversity and 350.org, Petition to Establish National Pollution Limits for Greenhouse Gases Pursuant to the
Clean Air Act before the Administrator of the Environmental Protection Agency, December 2, 2009,http://www.biologicaldiversity.org/programs/climate_law_institute/global_warming_litigation/clean_air_act/pdfs/Petition_GHG_
pollution_cap_12-2-2009.pdf.
119 Brian H. Potts, “Obama’s Hidden Climate Leverage,” Politico, February 1, 2016,
http://www.politico.com/agenda/agenda/story/paris-climate-deal-epa-obama-000034.
120 UNFCCC, Paris Agreement—Status of Ratification.
121 Steven Groves, Brett Schaeffer, and Nicolas Loris, “The United States Should Withdraw from the United Nations
FrameworkConvention on Climate Change,” Backgrounder No. 3130, Heritage Foundation, June 9, 2016,
http://www.heritage.org/environment/report/the-us-should-withdraw-the-united-nations-framework-convention-climate-change.
122 U.S. Senate Committee on Environment and Public Works, “Inhofe, Senators to Secy. Kerry: U.S. Law Prohibits Sending U.S.
Funds to U.N. Climate Convention,” news release, April 18, 2016,
https://www.epw.senate.gov/public/index.cfm/2016/4/inhofe_letter_sec.kerry.
122 Marlo Lewis, Jr., “Time for a Sensible Sense of Congress Resolution on Climate Change,” OnPoint No. 201, Competitive
Enterprise Institute, June 17, 2015, https://cei.org/content/time-sensible-sense-congress-resolution-climate-change.

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Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

About the Authors

Christopher C. Horner serves as a senior fellow at the Competitive Enterprise Institute. An attorney in Washington,
D.C., Horner has represented CEI, scientists, and members of the U.S. House of Representatives and U.S. Senate on
matters of environmental policy at the federal court level and before the U.S. Supreme Court (including scientists in
Massachusetts. v. EPA in 2007).

Horner is regularly mentioned and published by The Washington Times, National Review Online, Daily Caller,
Investor’s Business Daily, Washington Free Beacon, and Washington Examiner. He has been cited on several recent
occasions in The Wall Street Journal’s editorial pages. He has also written for Human Events, PJ Media, United Press
International, Energy Tribune, Spain’s Actualidad Economica, and Brussels’ EU Reporter. Horner has discussed
legal, policy, and political issues hundreds of times on television and radio programs in the United States, Europe,
Canada, and Australia.

Horner is the author of four books including three on global warming and environmental policy, law and politics,
including two best-sellers, The Politically Incorrect Guide to Global Warming and Environmentalism ( 2007) and Red
Hot Lies: How Global Warming Alarmists Use Threats, Fraud and Deception to Keep You Misinformed (2008). The
former spent six months on The New York Times bestseller list and earned him an appearance on “The Daily Show”
with Jon Stewart.
Horner has testified before the Senate Foreign Relations and Environment and Public Works committees. He has
worked on legal and policy issues with various public policy organizations around the globe. He has given lecturesat universities in the U.S., Europe, and Central America, as well as numerous addresses in the European Parliamentand before policy makers in multiple European capitals on a variety of topics relating to energy and environmental
issues.

Horner serves on The Federalist Society’s International and National Security Law Practice Group’s Executive
Committee. He is also a senior legal fellow at the Energy and Environment Legal Institute. He received his Juris Doctorate
from Washington University in St. Louis, where he received the Judge Samuel Breckenridge Award for Advocacy.
Marlo Lewis, Jr. is a senior fellow at the Competitive Enterprise Institute, writing on global warming, energy policy,
and public policy issues.

Lewis has been published in The Washington Times, Forbes, National Review, Investors’ Business Daily, Engage,
Environmental Law Institute Forum, The Hill, FoxNews.com, Real Clear Policy, Public Utility Fortnightly, Universityof Richmond Law Review, Interpretation: A Journal of Political Philosophy, and other publications. He has appearedon various television and radio programs, including on the Oprah Winfrey show, where he provided counterpoint to
Al Gore’s An Inconvenient Truth. He produced, wrote, and narrated the documentary film, Policy Peril: Why Global
Warming Policies Are More Dangerous than Global Warming Itself.

Lewis has testified before the Senate Environment and Public Works Committee, the House Permanent SelectCommittee on Intelligence and House Select Committee on Energy Independence and Global Warming, and House
Government Reform Subcommittees on the Census and Regulatory Affairs.
Prior to joining CEI in 2002, he served as Director of External Relations at the Reason Foundation. During the 106th
Congress, Lewis served as staff director of the House Government Reform Subcommittee on National Economic
Growth, Natural Resources, and Regulatory Affairs. He has also served as research director for Citizens against
Government Waste. Earlier, he was a staff consultant to the House Foreign Affairs Subcommittee on International
Economic Policy and Trade, a special assistant at the State Department Bureau of Inter-American Affairs and Bureau
of International Organization Affairs, and a Visiting Assistant Professor of Political Science at Claremont McKenna
College.
He holds a Ph.D. in Government from Harvard University and a B.A. in Political Science from Claremont McKenna
College.
Horner and Lewis: The Legal and Economic Case Against the Paris Climate Treaty

45

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