The Centuries-Old Legal Doctrine Looming Over Trump’s Paris Climate DecisionBy
Trump set to decide soon on U.S. role in Paris climate accord
Foes of deal warn that it imperils Trump regulatory rollbacks
If the U.S. withdraws from the Paris climate accord -- an option gaining favor among top White House advisers -- Charming Betsy may be partly to blame.
Or, more specifically, the Charming Betsy doctrine. That’s a legal principle stemming from a 213-year-old case involving a schooner of the same name. It says that federal policies should be interpreted, when possible, so they don’t conflict with international laws.
The doctrine has emerged as a major point of contention in White House debates over continued membership in the international climate pact. At issue is whether staying in the accord could legally oblige President Donald Trump to preserve carbon-cutting policies that he is moving to jettison.
The White House counsel’s office warned Trump administration officials in a meeting Thursday and in a separate memo that if the U.S. stays in the global accord, it could arm environmentalists with legal ammunition for lawsuits challenging the president’s domestic regulatory rollbacks.
Those concerns were amplified in a meeting of White House staff and administration lawyers on Monday, as officials also expressed skepticism about whether the U.S. has the ability under the agreement to dial back its pledge to slash greenhouse gas emissions.
The debates were detailed by three people familiar with the meetings who asked not to be identified describing internal discussions.
Even though concerns with remaining in the Paris accord have dominated the two most recent White House meetings on the subject, the final decision rests with Trump, who has shown himself to be unpredictable in carrying out past campaign vows.
While running for president, Trump promised the U.S. would leave the deal, taking aim at the cornerstone of former President Barack Obama’s efforts to combat climate change. Under Obama, the U.S. played a leading role driving the global accord, which culminated with the support of nearly 200 countries in December 2015. The U.S. pledged to cut its carbon emissions 26 to 28 percent from 2005 levels by 2025.
Trump promised during a rally Saturday in Pennsylvania to make a "big decision" on the Paris accord over the next two weeks. He derided the agreement as a "one-sided" deal that threatens U.S. economic output and will spur the closing of factories and plants nationwide.
"We are not going to let other countries take advantage of us anymore, because, from now on, it’s going to be America first," Trump told the crowd in Harrisburg.
Top administration officials have been divided over whether the president should make good on his campaign pledge and get out. A State Department memo circulated last week asserts the Paris agreement imposes few obligations on the U.S.
Meanwhile, under questioning from White House chief strategist Steve Bannon at Thursday’s meeting of top aides on the issue, Environmental Protection Agency Administrator Scott Pruitt said remaining in the agreement could imperil his effort to undo Obama’s Clean Power Plan, the people familiar with the session said.
Supporters of the deal, including environmentalists, a handful of coal companies and some oil producers, warn that U.S. exports, including natural gas and clean energy technology, could face economic sanctions if the country abandons the pact.
It “would be a disaster for the United States because it would provoke international blowback, harm our global leadership role, and threaten the health and safety of all families in this country," Sierra Club Global Climate Policy Director John Coequyt said in an email.
Mike McKenna, a Republican energy consultant pushing for an exit, argues there’s just too much legal risk to stay in.
"With the exception of those State Department lawyers who abetted in the original unwise decision to sign onto the Paris agreement, the lawyers all seem to agree that the right answer is to exit the agreement swiftly, decisively and cleanly," McKenna said. The alternative is "UN bureaucrats and fellow travelers having a say in how Americans produce and consume energy."
But supporters say the U.S. has wide latitude to rewrite a scaled-back pledge or ignore its existing commitment altogether. To lure international support for the agreement, negotiators built flexibility in the deal, encouraging countries to make highly tailored, individual pledges known as "nationally determined commitments," rather than agree to a universal greenhouse gas target.
The agreement does not bind the U.S. or constrain domestic regulatory moves, former climate negotiator Susan Biniaz and Daniel Bodansky, an expert in international environmental agreements, argue in a memo produced for the Center for Climate and Energy Solutions, a non-profit focused on fighting climate change.
Although the pact includes language saying parties "shall pursue domestic mitigation measures with the aim of achieving" their carbon-cutting promises, that provision doesn’t mandate particular measures, the pair wrote. "The Paris agreement has no bearing on whether domestic law allows the president to scrap the Clean Power Plan," they said.
Sierra Club lawyers came to a similar conclusion, in a May 1 memo to Coequyt asserting it "would be extremely difficult to prevail" in lawsuits seeking to block the administration from weakening the U.S. pledge or leaving the deal altogether. In litigation challenging regulatory rollbacks the question will be whether the administration is properly exercising its domestic regulatory authority, he wrote.
The Charming Betsy doctrine generally says courts should interpret domestic law, when possible, to be consistent with international law. The canon stems from the 1804 case Murray v. Schooner Charming Betsy, in which the Supreme Court grappled with what to do about a flour-laden trading vessel ensnared in a dispute between the U.S. and France.
The schooner had sailed from Baltimore and was sold to a former U.S. citizen turned Dane living in St. Thomas. After the vessel was captured by a French privateer, it was seized under instructions from the U.S. president for violating a trade law barring commercial dealings between the U.S. and France (or its dependents).
But Chief Justice John Marshall concluded that the trade restrictions did not apply to the Charming Betsy’s Danish captain, since that would run afoul of international norms. "An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains," Marshall wrote.
More than two centuries later, those words still hang over domestic disputes that collide with international practices. Critics of the Paris accord say the principle poses risks that U.S. judges will weigh rollbacks of climate regulations against that global agreement.
But Biniaz and Bodansky say that doctrine doesn’t apply here, since the Paris agreement is not binding and doesn’t actually require member countries to achieve their carbon-cutting pledges. Because the U.S. would not violate international law by scaling back its pledge or rescinding the Clean Power Plan, they say, "the Charming Betsy doctrine would be inapplicable."
Administration officials mulling how much flexibility the U.S. has to walk back its pledge have also fixated on a provision in the agreement asserting that any member country "may at any time adjust its existing nationally determined contribution with a view to enhance its level of ambition."
Climate negotiators in Paris specifically weighed whether to use harsher language, such as saying member countries "shall" boost their contributions over time or explicitly prohibiting backpedaling. But they decided against those approaches in part out of fear that would encourage less ambitious contributions from the start.
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