Home inSight The Paris Agreement and Federalism

The Paris Agreement and Federalism

Shoshana Bryen
SOURCEThe Daily Caller
President Donald Trump announcing the U.S. withdraw from Paris climate accord earlier this year at the White House. (Photo: AP)

Groucho Marx famously said he wouldn’t be a member of any club that would have him as a member. The same is true of the Paris Climate pact.

With the accession of Nicaragua and Syria, the United States stands alone outside the club. Its members largely break down into groups. There are the world’s largest polluters (India, Russia, China). There are the developed countries that work to control their own pollution and emissions but make only minor financial contributions (most of Western Europe and parts of Asia). There are poor countries that want handouts. And then there is Syria, a criminal regime, which gets its own group. (It appears chemical weapons are not considered “pollutants” — unless you breathe them.)

And us.

The goals of the pact are strikingly modest — a voluntary commitment to limit global warming to 2 degrees Celsius above pre-industrial levels — but the withdrawal of the United States was followed by frenzied despair for the future of the planet. Germany, France and Italy announced: “We deem the momentum generated in Paris in December 2015 irreversible and we firmly believe the Paris Agreement cannot be renegotiated, since it is a vital instrument for our planet, societies, and economies.”

The European Commission president decried the abdication of American leadership, saying the U.S. wanted to “untie itself from international connections.” Heavy words for an agreement that was not ratified or even discussed by the U.S. Senate, which answers to the American people, not the European Commission.

But here is where America shines.

dozen American states and more than 200 cities have committed themselves (or their constituents) to maintaining the principles and goals of the Paris pact. More than 1,000 companies and institutions, including more than a dozen Fortune 500 businesses, signed a statement joining them.

Whether they planned it this way or not (probably not), they have exercised a fascinating burst of American federalism.

Federalism is how states and municipalities exercise their authority separate from the federal government. For decades, liberals have sought more federal power over states (abortion, marriage, health insurance, and bathrooms), while conservatives have argued for less.

Not this time.

The determination of state, local, and business leadership to forge ahead on standards for conservation, energy, and pollution control is an outstanding development that does not require the federal government and appears not to run afoul of federal law (unlike, for example, sanctuary cities).  The question is not whether it is better to have or not have clean air and water; not whether to find better ways of managing waste and generating electricity or not find them.  There are only two questions:

  • Who will do the heavy lifting for what we all consider benefits?  Certain states, cities and companies say they will, and more power to them, so to speak.  American ingenuity and capability will surely create better and smarter ways to live in the only atmosphere we have.
  • What constitutes the best use of American money in pursuit of those aims?

Technology doesn’t create itself, and the role of government and private investment choices looms large. The federal government has a poor track record of choosing investments. (Solyndra, anyone?)  The market, from startups to Fortune 500 companies, is the better mechanism for emerging and adaptive technologies. Wayze (Israeli) and Amazon and Uber (American) come to mind.

Absence of a market, or investment mechanism or money for the sort of innovation at which America excels is a major shortcoming of the Paris pact. Consider the founding document  the Europeans adamantly oppose changing.

Wealthy countries pledged $100 billion annually a “Green Climate Fund.” The Obama administration put $1 billion of a $3 billion pledge into the pot; the Europeans, in total, have put $40 million. The polluting group — China, Russia, and India — have offered nothing.  The goal of the fund is “help[ing] developing countries move away from fossil fuels and use more renewable power supplies… To reach these ambitious goals, appropriate financial flows, a new technology framework and an enhanced capacity building framework will be put in place, thus supporting action by developing countries and the most vulnerable countries, in line with their own national objectives.”

That is to say, the financial flows from America and other developed countries to provide retail assistance in “new technology” to poor countries — solar panels, wind farms — in line with “their national objectives,” not those of the donor countries.  This provides a big boost to China — polluting, not paying, the world’s primary provider of solar panels, and willing to undercut Western companies on price (Solyndra, anyone?). There is no requirement that less developed countries spend any of their own money, which is a recipe for corruption.

The United States has no obligation to fund anyone else’s program — or Chinese industry. American states, cities, and entrepreneurs are likely better incubators of technologies that will advance clean and sustainable energy than multi-lateral institutions with lots of rules and no controls.

A club of one is fine.

  • Robert

    If the Paris Agreement has no enforceable requirements and sets goals that are reasonable, how does signing it and solidarity with the global community interfere with Federalist efforts? The agreement does not bind the US to any particular multi-lateral institution. This article does not, in fact, make a clear argument for not signing. It only speaks to the strengths of Federalist actions on th issues. Are signing the agreement and Federalist action mutually exclusive? Please speak to this.

    • Paul E. Merrell, J.D.

      As a retired environmental lawyer, I’ll try to answer.

      First, it’s “Federalism” not “Federalist,” more properly in federal judicial-speak, “Our Federalism.” But the powers reserved to the State governments by the federal Constitution are generally referred to as a class as “States’ Rights.” Our Federalism refers to the area of law where federal and state powers come into conflict. There are limits to federal power but those powers generally are expanding by Supreme Court interpretation. I.e., some powers that originally belonged to the States have been usurped by later court decisions.

      “Are signing the agreement and Federalist action mutually exclusive?”

      No, although had the federal government stuck with the Paris Agreements, federal law or regulation would have provided leadership that would probably be binding on all states.

      The principle weaknesses of it being left up to state and local government are that: [i] the U.S. contribution to Developing Nations’ efforts doesn’t happen; [ii] there is no requirement that *all* state and local governments abide by the Agreements; [iii] there are no federal standards to which adherence is required, so state and local efforts may vary widely in effectiveness; and [iv] our entire nation-wide mature system of joint federal-state air pollution regulation under the Clean Air Act is left behind — there is no alternate system of interstate coordination.

      • Shoshana Bryen

        Dear Paul –
        Thank you for that cogent explanation.
        I would simply note that that your point [i] is precisely the reason we were pleased that the US is no longer bound to the treaty. The Obama administration spent a billion tax dollars and pledged more to a system under which we have no control of the funds – to whom they go, for what programs, and with what accountability. If the government authorized and appropriated the same amount of money and spent it consistent with American laws and interests, it would be a different matter.
        As for [iii], states routinely set standards for themselves in all sorts of matters. Minimal national standards always apply – going bigger, stronger or longer is OK. EPA has set American minimal pollution standards and the states will meet those. If, in addition, private industry can contribute here, its a plus.
        Shoshana