Can Trump Unilaterally Withdraw from International Climate Agreements?

According to several anonymously sourced stories, President Donald Trump has decided to withdraw from the Paris Agreement on climate change. Activist groups have reacted with rage (if against) or glee (if for). After a day of this online angst, the president tweeted, “I will be announcing my decision on Paris Accord, Thursday at 3:00 P.M. The White House Rose Garden. MAKE AMERICA GREAT AGAIN!”

Can the president withdraw from international agreements at his whim? A comprehensive legal analysis by the Congressional Research Service (CRS) basically concludes that he can. The analysis, published in February, observes that presidents have historically closed three types of deals with other countries: treaties, executive agreements, and political commitments.

Under the Constitution, a treaty does not enter into force until it is endorsed by a two-thirds majority of the Senate and is subsequently signed by the president. The United Nations Framework Convention on Climate Change (UNFCCC) is a treaty, and the Senate approved it in 1992. Executive agreements are legally binding pacts that the president enters without seeking the advice and consent of the Senate, based on his sole authority to negotiate with foreign nations. The Obama administration treated the Paris Agreement as an executive agreement subsidiary to the UNFCCC. Political commitments are not legally binding, but they may include other inducements that encourage parties to honor them.

The CRS concludes that since the Obama administration regarded the Paris Agreement as an executive agreement, a new president has the authority to “unilaterally withdraw from it without seeking approval from the legislative branch.”

There is one wrinkle. Under the Vienna Convention on the Law of Treaties, termination or withdrawal from treaties can take place only “in conformity with the provisions of the treaty” or by mutual consent of the parties. Although the United States does not consider an executive agreement to be a treaty, under public international law executive agreements do count. As it happens, the Paris Agreement does not allow parties to withdraw until three years after it has come into force. So under the Vienna Convention, the Trump administration would have to wait until November 2019 to complete its withdrawal from the agreement.

On the other hand, although the U.S. signed the Vienna Convention in 1970, the country is not actually a party to that treaty, since the Senate has not given its advice and consent to it. The State Department does note, “The United States considers many of the provisions of the Vienna Convention on the Law of Treaties to constitute customary international law on the law of treaties.”

If the Trump administration wanted to speed up the process of getting out of the Paris Agreement, the president could withdraw from the underlying UNFCCC. If the president chose this option, the CRS analysis notes, “Withdrawal from both the UNFCCC and the Paris Agreement would become effective one year later.”

But surely if it takes the consent of two thirds of the Senate to approve a treaty, it must take a similar vote to withdraw from one, right? “The Constitution sets forth a definite procedure for the President to make treaties with the advice and consent of the Senate, but it does not describe how they should be terminated,” observes the CRS analysis. “In most cases, this unilateral presidential action has not generated significant opposition in either chamber of Congress.” On those rare occasions that members of Congress have challenged the right of presidents to unilaterally terminate ratified treaties, the federal courts have basically stepped aside, letting the other two political branches to fight it out.

Given the highly polarized public debate over the Paris Agreement, a presidential withdrawal from the UNFCCC would surely provoke some members of Congress to challenge that decision in federal court. One way to avoid this legal wrangling would be for the president to submit (with or without a recommendation for ratification) the Paris Agreement to the Senate as a treaty, seeking its advice and consent. After all, the vast majority of other Paris Agreement signatories have formally ratified it.

Bonus video: Yesterday I discussed Trump and the Paris Agreement on CNBC with Dan Kanninen, who served as Obama’s White House liason at the EPA: