EXAMINING THE LEGAL IMPLICATIONS OF THE PARIS AGREEMENT
This morning, 22 Republican senators sent President Trump a letter asking him to withdraw from the Paris Convention because 1) he presents “a significant litigation risk” to EPA’s efforts to eliminate the Clean Energy Plan and 2) that could be used In an attempt to force the EPA to begin CO2 regulation in section 115 of the Clean Air Act. As proof of that threat, senators cite public statements I made last year under which the environmental community views Article 115 as its “silver bullet” [sic] day.
First, the Paris Agreement offers no legal tribute to defend EPA’s efforts to eliminate the clean energy plan; As I explained a short time ago, not less than a case of Massachusetts v. EPA puts that idea to the test.
Second, a silver bullet is “something that acts like a magic weapon: Concretely: An instant that solves a long-standing problem” A silver ball is not a solution to anything else, we are saying this, killing The werewolves. I wrote that not only are there enormous legal obstacles to the use of Article 115 in the manner envisaged by environmentalists, but even attempt to do so will certainly cause a political frenzy.
Ironically, refusing to take action to address climate change, these 22 senators lay the groundwork for the next Democratic administration to try to use Article 115 in the way they fear. The purpose of my remarks was that this day drew attention to the real risk that even the Congressional inaction leading to a future EPA would impose such a regulatory regime. As I said at the time:
If between 10 and 12 years, Congress has done nothing, and the EPA is trying a 115 approach, and it reaches the Supreme Court, five or more judges might say, look, Congress did nothing. The executive has at least one law that says the works and has a solution to this problem.
So if these senators are concerned that the Paris Agreement lead to this outcome, the best remedy is to prevent this attempt. Instead of withdrawing the United States for an international agreement that will be easy to achieve, they could take action to get a carbon price, leaving Article 115, being a small and relatively obscure part of the Clean Air Act ….