The Paris Agreement and the New Administration

Earlier this month, the Congressional Research Service (CRS) released its report entitled Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement.  This report examines issues around withdrawing from treaties under domestic and international law, specifically applying its analysis to the Paris Agreement and the Joint Comprehensive Plan of Action related to Iran’s nuclear program.

While there is some dispute over the procedures for withdrawing from a treaty that was entered into by the President with the advice and consent of the Senate (per the Constitution), the Obama Administration considered the Paris Agreement an executive agreement not requiring the Senate’s advice and consent.  The CRS Report concludes that there does not seem to be a restriction on unilateral withdrawal from this Agreement by the President.

However, by its terms, a party cannot actually withdraw from the Paris Agreement until November 2019.  The Report notes that the Paris Agreement is a subsidiary to the 1992 United Nations Framework Convention on Climate Change (UNFCCC), though, and withdrawal from the UNFCCC will effectively withdraw the party from the Paris Agreement. But because the George H.W. Bush Administration entered into the UNFCCC with the advice and consent of the Senate, it is unclear whether unilateral withdrawal by the President would be upheld if challenged.

Another option to change course on the Paris Agreement would be non-implementation.  The Agreement has been interpreted to not create a binding duty to take particular steps or to meet emission reduction targets.

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