To:
From:
Date:
RE:
John Coequyt
Steve Herz
May 1, 2017
Possibility of suing Trump Administration over revising U.S. NDC Target
You have asked me to research the question of whether the Sierra Club could sue the
administration in a U.S. court to prevent it from weakening the U.S. NDC or from leaving the
Paris Agreement outside of the withdrawal provisions. For the reasons discussed below, it would
be extremely difficult to prevail on the merits of either argument.
1. It is extremely unlikely that a U.S. court would find that Art. 4.11 creates a private right
of action that would allow a suit against the Trump administration challenging the revision
of the NDC, or that such a suit could win on the merits.
The Paris Agreement requires each Party to “prepare, communicate and maintain successive
nationally determined contributions (NDCs) that it intends to achieve.” (Art. 4.2). The NDC
submitted by the Obama administration provides that “the United States intends to achieve an
economy-wide target of reducing its greenhouse gas emissions by 26%-28% below its 2005 level
in 2025 and to make best efforts to reduce its emissions by 28%.
Rep. Kevin Cramer, an adviser on energy issues to the Trump transition team, has recommended
that the administration “renegotiate” the Agreement by withdrawing the existing NDC and
replacing it with something significantly weaker.
A domestic U.S. court would almost certainly decline to hear a challenge to a downward revision
of the NDC based on Article 4.11. A court would likely conclude that because this article of the
Paris Agreement is not “self-executing,” it would not have automatic effect as domestic law.
Even if a court did conclude that this provision of the Agreement was self-executing, it would be
unlikely to find that it creates a private right of action redressable by either damages or injunctive
relief to a private litigant. Moreover, even if a court did reach the merits, it would likely pay
great deference to the State Department’s conclusion that Art. 4.11 does not prohibit Parties from
decreasing the ambition of their pledges.
Needless to say, the fact that the revision of the NDC may not be justiciable in domestic court
does nothing to impede our ability to challenge the Trump administration’s efforts to roll back
federal regulations to reduce emissions, as described in his recent Executive Order on climate
and energy. With regard to each regulation, the question will be whether the administration is
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properly exercising its domestic regulatory authority. The Paris Agreement, and its enforceability
in U.S. courts, will have no bearing on this issue.
A. A court is unlikely to conclude that the relevant provision of the Paris Agreement is
self-executing.
Supreme Court jurisprudence has long distinguished between treaties1 that automatically take
effect as domestic law and those that do not. A particular provision of a treaty is considered to
be “self-executing” and thus “equivalent to an act of the legislature,” when it “operates of itself
without the aid of any legislative provision.” Medellín v. Texas, 552 U.S. 491 (2008) quoting
Foster v. Neilson, 2 Pet. 253, 315 (1829), overruled on other grounds, United States v.
Percheman, 7 Pet. 51 (1833). On the other hand, where “[treaty] stipulations are not selfexecuting they can only be enforced pursuant to legislation to carry them into effect.” Medellín,
id., quoting Whitney v. Robertson, 124 U. S. 190, 194 (1888).
Self-executing and non-self-executing treaties are primarily distinguished by their intent. A
particular provision of a treaty will be considered to be self-executing where it “conveys an
intention that it be ‘self-executing’ and is ratified on these terms.” Medellín, id., quoting IgartúaDe La Rosa v. United States, 417 F. 3d 145, 150 (CA1 2005) (en banc) (Boudin, C. J.). Where
this intent is not present, enforcement of the agreement depends upon the good faith of the
Parties in adopting implementing legislation. Failing that, the enforcement becomes the subject
of “international negotiations and reclamations . . . .” Courts can provide no redress. Head
Money Cases, 112 U.S. 580, 598 (1884).
There are no provisions of the Paris Agreement that manifest the intent to create binding
domestic law. Indeed, there are at least two reasons to conclude that the intent of the agreement
was explicitly not to do so. First, the Agreement includes specific provisions for addressing
violations and resolving disputes. It creates a mechanism to advance implementation and
promote compliance that is “facilitative in nature” and intended to be “transparent, nonadversarial and non-punitive.” (Art. 15). It also adopts the dispute resolution procedures of the
Article 14 of Framework Convention, which encourage Parties to settle disputes through
negotiation, and makes explicit provisions for judicial resolution, arbitration, and conciliation.
(Art. 24). The Supreme Court has suggested that the explicit provision for such international
remedies in an agreement is evidence that the agreement is not intended to be self-executing and
not meant to be directly enforceable in domestic courts. Medellín, id.,citing Sanchez-Llamas v.
Oregon, 548 U. S. 331, 347 (2006).
Second, it is evident that the United States did not treat the nationally determined contribution
provisions of the Agreement as self-executing. The U.S. submission explains that the planning
process to develop the emissions reduction target relied on opportunities to reduce emissions
“under existing regulatory authorities” and in an informational section that describes domestic
laws, regulations, and measures “relevant to implementation” of the U.S. target, the submission
1
Of course, for purposes of U.S. law, the Paris Agreement is an executive agreement, not a treaty, although as a
matter of international law, it is governed by the Vienna Convention on the Law of Treaties. The particular manner
in which the U.S. joins an international agreement under U.S. constitutional law should not determine whether or not
it has automatic domestic effect.
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identifies the specific regulatory authority for each policy or measure listed. The clear
implication is that these provisions are to be implemented according to existing domestic
regulatory law. Although Art. 4.2 requires each Party to “pursue domestic mitigation measures,
with the aim of achieving the objectives of such contributions” this wording suggests that United
States did not believe that Art. 4.2 was intended to provide an independent legal authority for
taking the necessary domestic regulatory action to achieve the stated NDC.
B. Even if a court were to conclude that the relevant provision of the Agreement is selfexecuting, it is unlikely to find that that provision creates a private right of action.
Just because a particular provision of a treaty is considered to be self-executing does not
necessarily mean that it creates a right of action for private litigants to enforce it through private
lawsuit. In fact, the Supreme Court has observed that “the background presumption is that
‘[i]nternational agreements, even those directly benefiting private persons, generally do not
create private rights or provide for a private cause of action in domestic courts.’” Medellín, fn 3,
quoting 2 Restatement (Third) of Foreign Relations Law of the United States §907, Comment a,
p. 395 (1986). Accordingly, many Courts of Appeals have presumed that treaties do not create
private causes of action in the absence of express language to the contrary. Medellín, Id. (citing
numerous cases). There is no express language in the Paris Agreement that could be interpreted
to create a private right of action.
C. A court is likely to defer to the conclusion of the State Department that Art. 4.11 allows
countries to revise their NDCs downward.
We know that the State Department has taken the position that Art. 4.11 allows Parties to adjust
their NDCs downward without necessarily violating the Agreement. The Medellín Court
observed that it is longstanding practice to afford the government’s interpretation of a treaty
“great weight”, particularly when that view is shared by partner governments to the same treaty.
Citing Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184–185 (1982); see also El Al
Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U. S. 155, 168 (1999).
In addition, while we have not seen their opinion, we can assume that the State Department
relies, at least in part, on its own detailed, insider understanding of the history of the
negotiations. We should expect the State Department to be able to tell a compelling story about
how its negotiating objectives, the choice and evolution of the “with a view to enhancing its level
of ambition” language in Art. 4.11, and the objectives and understanding of other Parties all
support its interpretation. The Supreme Court has repeatedly held that the negotiation and
drafting history of the treaty and the “postratification understanding” of the Parties can all be
used to aid interpretation of its provisions. Medellín, citing Zicherman v. Korean Air Lines Co.,
516 U. S. 217, 226 (1996); see also United States v. Stuart, 489 U. S. 353, 365–366 (1989);
Choctaw Nation v. United States, 318 U. S. 423, 431–432 (1943).
A litigant challenging the State Department’s interpretation that Art. 4.11 allows it to weaken the
existing NDC would find it difficult to overcome both the presumption in favor of the State
Department’s interpretation and its effective monopoly on explaining the history and evolution
of its provisions.
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2. The withdrawal provisions of the Paris Agreement do not allow for the U.S. to leave the
agreement immediately. If the U.S. were to attempt to withdraw in violation of those
provisions, it is unlikely that a domestic court in the United States would intervene.
However, such a move is unlikely to be recognized by the United Nations or other Parties,
and would be deeply embarrassing and politically costly to the United States.
As noted in Footnote 1 above, the Paris Agreement is an executive agreement under U.S. law,
not a treaty that requires Senate ratification, however, for purposes of international law, the Paris
Agreement is a treaty governed by customary international law - that customary law, as
expressed in the Vienna Convention on the Law of Treaties, provides that there is no general
right to unilaterally withdraw from a treaty outside the terms set forth by the treaty. (Art. 42.2).
The Paris Agreement, like most international agreements, sets out clear procedures for
withdrawal. A Party may withdraw “at any time after three years from the date on which this
Agreement has entered into force” for that Part by submitting written notification to the
Depositary (the U.N. Secretary-General). (Art. 28.1) Such withdrawal does not take effect until
at least one year after the Depositary has received the notification. (Art. 28.2)
Because the Agreement entered into force on November 4, 2016 with the U.S. as a Party, the
U.S. cannot give valid written notice to the Depositary until November 4, 2019, and that
withdrawal would not take effect until November 4, 2020, the day after the next Presidential
election.
For the reasons set out in the previous section, there is little reason to believe that a domestic
U.S. court would hear a challenge to a U.S. withdrawal. However, in the event that the
administration took the extraordinary step of trying to leave the Paris Agreement outside of its
withdrawal provisions and the requirements of the Vienna Convention, the Depositary might
accept the written notification with a notation that the treaty’s withdrawal provision had not
literally been complied with. Other Parties could affix their own notation disputing the
withdrawal, and would likely view the U.S. as continuing to be a Party to the Agreement and
would hold the U.S. to its obligations (which, admittedly, are minimal during the 2017-2020 time
period). Goldwater v. Carter, 444 U.S. 996 (1979), the only Supreme Court decision to address
the constitutionality of an executive branch withdrawal from a treaty, would not be on all fours,
varying from these facts in three respects, given that Goldwater involved President Carter’s
withdrawal from (1) a bilateral treaty, the mutual defense treaty between the United States and
Taiwan, (2) in accordance with its terms, (3) in the context of the President’s recognition of the
People’s Republic of China, a zone in which the President has unusual unilateral constitutional
authority.
Under any circumstances, leaving the Paris Agreement would invite significant diplomatic
blowback. Trying (and failing) to leave the Agreement in violation of its withdrawal provisions,
however, might have additional adverse impacts, insofar as it would undermine U.S. credibility
in the full range of its diplomatic engagements.
Moreover, upon assuming office, a new President committed to the Paris Agreement could
ignore this “unsigning” as legally meaningless, and resume complying with the Agreement’s
obligations. There is recent precedent for this in the approach that the Obama administration took
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to the previous administration’s attempted “unsigning” of the Rome Statute creating the
International Criminal Court.2
2
For a detailed discussion of this strategy, see, Harold Hongju Koh, On American Exceptionalism, 55 STAN. L.REV.
1479, at 1503-09 (2003); Harold Hongju Koh, International Criminal Justice 5.0, 38 Yale J. Int’l L. 525 (2013).
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