Climate Change under the New Trump Administration

Professor Myanna Dellinger

University of South Dakota School of Law

White House: An America First Energy Plan:

“For too long, we’ve been held back by burdensome regulations on our energy industry. President Trump is committed to eliminating harmful and unnecessary policies such as the Climate Action Plan[1] and the Waters of the U.S. rule.”[2]

Voter support:

  • 56% of Congressional Republicans deny climate change (2015).[3]
  • But: Increasing numbers of Americans—including Trump voters—see the value of solving climate change. Just 28% of Trump voters think that the U.S. should back away from the Paris Agreement.[4]
  • 6/10 Trump voters support taxing or regulating the pollution that causes global warming![5]

Climate Leadership Council:[6]

  • 2/8/2017 the newly established “Climate Leadership Council”— a consortium of Republican Party stalwarts including officials from the Reagan and both Bush administrations—unveiled their plan for a gradually increasing, revenue-neutral tax that puts a price on carbon dioxide emissions.
  • $40 tax on each metric ton of carbon dioxide emissions, with the tax steadily increasing on an annual basis.
  • All proceeds—an estimated $200 to $300 billion per year—would be distributed back to American citizens in the form of dividend checks. (Said to be approx. $2,000 for a family of four).
  • Border carbon adjustments as well.
  • In return for implementing the tax, the plan calls for cutting many current U.S. regulations on carbon emissions. In particular, the plan calls for axing the Clean Power Plan, an Obama-era EPA rule that aimed to slash CO2 from power plants, which generate 37 percent of the country’s total carbon emissions.
  • Appeal to business community, which has been desperate for some kind of regulatory certainty.
  • Trump does not support.

Tax advantages:

  • Initially, the plan would add about 36 cents to the price of a gallon of gasoline.[7]
  • But the Treasury Department report finds that after distributing dividends, the plan actually would increase the after-tax income of the bottom 70 percent of Americans.
  • The Climate Leadership Council says that a family of four would receive about $2,000 in payments in the first year.
  • Nonprofit Carbon Tax Center[8] has heaped praise upon the Republican proposal. The center’s in-house projection says that by 2030, the plan could cut carbon emissions 40% relative to 2005 levels—outperforming Obama-era efforts to rein in emissions.

Resistance:

  • Trump against.
  • June 2016, the U.S. House of Representatives voted 237-163 on a non-binding bill condemning carbon taxes as “detrimental to American families and business.”[9]
  • “It’s pure fantasy,” says George David Banks, the executive vice president of the American Council for Capital Formation, a pro-business think tank.

Around the World In Five Lawsuits:

A. Saoul Luciano Lliuya (Peru) v. RWE (Germany)[10]

  • Peruvian farmer sues German energy company RWE, seeking EUR 17,000 in damages towards a dam.
  • Compensation: 0.47% of estimated cost - represents RWE’s share of global emissions from 1751 to 2010.
  • Dismissed, but only because of no demonstration of legal causation. Scientific causation found!

B. Urgenda Foundation v. The State of the Netherlands[11]

  • In July 2016, district judges ruled the Netherlands must reduce emissions at least 25% from 1990 levels by 2020. Existing policies are set to yield 17%.
  • It was a groundbreaking victory for campaign group Urgenda, which brought the case backed by almost 900 citizens.
  • But after a parliamentary debate last week, the government confirmed plans to challenge the verdict in the Appeals Court.
  • It is the first case in the world in which human rights are used as a legal basis to protect citizens against climate change.

C. Klimaatzaak (Belgium)[12]

  • Klimaatzaak, an organization of concerned citizens, sued the federal and regional governments of Belgium in April 2015 for contributing to global climate change by failing to reduce greenhouse gas emissions. Klimaatzaak seeks to force the Belgian government to reduce greenhouse gas emissions 40% below 1990 levels by 2020 and 87.5% below 1990 levels by 2050.
  • The Plaintiffs allege, inter alia, that failure to reduce emissions constitutes a violation of human rights laws.
  • The parties are currently in the process of submitting written statements to the court. After the written submissions are made, the court will hold a hearing, and a decision will be issued 1-3 months later.

D. Our Children’s Trust (the United States of America)[13]

  • Standing to youth to challenge federal government’s inaction in sufficiently curbing climate change.

E. Greenpeace Petition to the Philippines Government[14]

  • Exxon Mobil, Chevron and Conoco Phillips are among the top targets of an inquiry by the Commission on Human Rights of the Philippines into the links between fossil fuel production, climate change and people losing homes and livelihoods to weird weather.
  • Public hearings will start in April 2017, Commissioner Roberto Cadiz revealed in an English language press conference on Thursday.
  • While the Commission has no power to impose penalties on the companies, it could put pressure on them to change their investment plans.
  • “As petitioners, we will continue to advocate for our demands, including an authoritative finding by the CHR that fossil fuel companies must respect human rights and outline steps that would shift their existing business practices away from further contributions to climate change and prevent human rights impacts,” said Rose Trajano, Secretary General of the Philippine Alliance of Human Rights Advocates, one of the petitioning organizations.

Nation state liability

A. Treaty-based:

  • Paris Agreement Decision of the Parties (“Decision”): expressly and indicatively provides that the loss and damage provision of the Agreement – Article 8 - will “not involve or provide a basis for any liability or compensation.”[15]

B. Customary int’l law:

  • “Internationally wrongful acts” – Trail Smelter
  • Fault standard – inaction enough
  • New cases indicate potential for liability not only to neighboring states, but globally!
  • Article 23, ILC Article, Force Majeure: “the wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.” Force majeure does not apply if the situation is “due, either alone or in combination with other factors, to the conduct of the State invoking it” or if the state has “assumed the risk” of that situation occurring.[16]
  • But: even if actions are not legally wrongful, nations may still be financially responsible.[17]

[1] United States: by 2025, reduce its emissions by 26 to 28 percent from 2005 levels. (By 2015, the U.S. had decreased its emissions 12 percent from 2005 levels.)

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[10] (no court documents available);

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[15] U.N. Framework Convention Climate Change, Report of the Conference of the Parties on its twenty-first session, held in Paris from 30 November 13 to 13 December 2015, U.N. Doc. FCCC/CP/2015/10/Add.1 § 51 (Jan. 29, 2016).

[16]U.N. Legislative Series, Materials on the Responsibility of States for Internationally Wrongful Acts, U.N. Doc. ST/LEG/SER B/25, 154 (2012) [hereinafter Legislative Series].

[17]Alina Kaczorowksa-Ireland, Public International Law 453 (5th ed. 2015).