One of the Many Violations of International Law by Donald Trump: The Executive Order Aimed at Undoing the Clean Power Plan

by Arushie Marwah*

On 28 March, 2017, President Donald Trump issued an executive order that seeks to change the landscape of environment protection laws and policy in the United States [1]. The order has revoked numerous policies introduced under the Obama regime; the most important being the Clean Power Plan. The Clean Power Plan was enacted in 2015, with the aim of reducing carbon dioxide emissions from power generation plants, in furtherance of the United States’ commitments under the United Nations Framework Convention on Climate Change (“UNFCC) [2]. For this purpose, the Act provided a flexible framework under which states would set their own targets for carbon emissions reductions based on the resources and technology that they possessed, the larger objective of the Act being that the United States would reduce carbon emissions from its electricity sector by 32 per cent by the year 2030, when compared with emissions in the year 2005 [3].

The Clean Power Plan and the Executive Order

In 2016, the Supreme Court of the United States had issued a stay on the implementation of the Clean Power Plan until its merits had been determined by the Federal Appeals Court [4]. Nonetheless, since 2015, over 30 states have installed pollution and carbon emission control mechanisms in power plants, and enacted their own state laws (like renewable energy standards and carbon cost-cutting advantages) in line with the Clean Power Plan. However, with Trump’s latest executive order recalling the Clean Power Plan, the entire foundation of climate change mitigation in the United States has been eroded. The plan, which formed the centre-piece of United States’ climate change policy, is sought to be reduced to a nullity, since the executive has now been directed to devise rules to undo the measure, all with the aim of increasing growth, job creation, and production in the power generation sector. While Trump has not yet issued any order directing the United States’ express withdrawal from the 2015 Paris Climate Agreement [5], the revocation of the Clean Power Plan may in itself violate the State’s obligations under international law.

The Executive Order and its Impact on United States’ Obligations towards Climate Change Mitigation

Under international law, the obligation of States to reduce their carbon emissions is embodied under the UNFCC. The UNFCC was drafted in the year 1992, to provide a framework for States to cooperate to mitigate climate change by reducing or avoiding greenhouse gas emissions. This treaty was based on the environmental law principle of common but differentiated responsibilities, whereby developed States were to adopt more stringent measures to reduce their carbon emissions as opposed to developing countries. Under the Convention, based on a combined reading of Articles 7, 10, 12 and 13, the parties can adopt any subsequent agreement, accord, protocol or annex to fulfill the objective of reducing the amount of greenhouse gas concentration in the environment.

As a result, in 2015, after twenty years of debate and discussions, over 141 States adopted the world’s first comprehensive climate agreement; the Paris Climate Change Agreement. Under Article 2 and 4(1) of this Agreement, State parties have committed certain nationally determined contributions to reduce greenhouse gases in the atmosphere. This means that each State can determine its own commitment levels and notify these to the remaining State parties. As part of this, the United States promised to cut its greenhouse gas levels by at least 26 per cent by 2025, when compared to emission levels in 2005. To achieve this objective, Obama enacted the Clean Power Plan. The Act was to evidence the world’s largest polluter, the United States’ first commitment to reduce its carbon emissions. However, now with the proposed removal of the Plan, the fulfilment of America’s obligations under the Paris Agreement and the UNFCC, remains uncertain. In fact, environmental groups have even estimated that if the Clean Power Plan is repealed, the United States contribution levels would remain at around 12 per cent less the commitment made under the Paris Agreement [6]. Thus, if Trump succeeds in implementing his Executive Order, America would have yet again (It has previously disregarded commitments under the Kyoto Protocol), breached its international obligations of mitigating climate change.

Now, it is true that skeptics of climate change and the relevance of the Paris Agreement, may argue that commitments made under the Agreement were never meant to be binding legal obligations and since there existed no mechanism to enforce these commitments, even if Trump did repeal the Clean Power Plan, no violation of international law would take place. However, even if we were to assume that the Paris Agreement was not a binding treaty in itself, the United States still has an obligation to reduce carbon emissions and reliance on conventional coal based industries under the UNFCC. In fact, this forms the object and purpose of the treaty, as evidenced through Article 2, which clearly provides that such a commitment would be the ultimate objective of the UNFCC as well as any subsequent agreement entered into by the parties. This means that since the United States is already under an obligation under the UNFCC to mitigate climate change, it is required to enact measures such as the Clean Power Plan to respect the principle of pacta sunt servanda, which provide that States must fulfil their international obligations in good faith [7]. Thus, as the Paris Agreement does not cast any responsibility on the United States different to what already exists under the UNFCC, the commitments made to reduce carbon emissions would continue to apply. Accordingly, by taking measures such as increasing coal mine leasing and less stringent environmental standards for power plants, Trump’s Executive Order would still be violating international law.

Conclusion

It is therefore evident, that the Executive Order issued by Trump takes the global climate change mitigation programme back by about twenty years, where States were still disputing the existence of such a phenomena and promoting coal based operations as opposed to cleaner, greener and renewable sources of energy. Such actions not only affect commitments of ensuring sustainable development based on the principle of common but differentiated responsibilities, but also endanger the future, health and safety of the State’s population. In fact, the removal of the Clean Power Plan may even have a ripple effect on the level of adherence to commitments made under the Paris Agreement by other States, casting doubt on the future of the Agreement itself. Thus, for the President of the most powerful country in the world to believe that climate change is “a hoax created to restrict industrial growth in America,” is an extremely dangerous scenario, one that we can only hope is mitigated by increased awareness and building political and diplomatic pressure.

[*Arushie Marwah is a fourth year student at National Law University, Jodhpur. An avid mooter, she is keenly interested in public international law and international humanitarian law.]

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[1] The White House, Press Secretary, President Executive Order on Promoting Energy Independence, accessible at https://www.whitehouse.gov/the-press-office/2017/03/28/presidential-executive-order-promoting-energy-independence-and-economi-1 (Mar. 28, 2017)

[2] United Nations Framework Convention on Climate Change, 1771 UNTS 107 [1994] ATS 2

[3] Trump to Sign Executive Order undoing Obama’s Clean Power Plan, The Guardian, accessible at https://www.theguardian.com/environment/2017/mar/26/trump-executive-order-clean-power-plan-coal-plants (Mar. 26, 2017)

[4] Wolf, Richard, Supreme Court Blocks President Obama’s Climate Change Plan, USA Today (Feb. 9, 2016)

[5] United Nations Framework Convention on Climate Change, Adoption of the Paris Agreement, 21st Conference of the Parties, Paris (2015).

[6] Emily Atkin, The Paris Agreement Is Burning, accessible at https://newrepublic.com/article/141640/paris-agreement-burning-trump-executive-order-obama-clean-power-plan (29 Mar. 2017).

[7]  Art. 26, Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331.

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