The Washington Times, 23 March 2020
By Chris Horner and Benny Peiser
The United States should pay close attention to developments in Europe, beyond their governments’ response to the COVID-19 virus. Other contagions loom.
For example, we now see proof that the retrenchment embodied by the current “coronavirus economy” could become legally mandated, with no recovery permitted but only worsening, in the name of climate change. While extreme, this is actually unfolding, and the United States ignores the warnings at its peril.
In February, the United Kingdom’s Court of Appeal blocked construction of a third runway at London’s Heathrow Airport. While additional runways seem quaint amid travel lockdowns, the longer view reminds us that infrastructure expansion is vital to economic growth. Ask any candidate for president, vowing massive infrastructure programs that, this ruling confirms, are irreconcilable with their climate promises like the Green New Deal and rejoining the Paris climate treaty.
The Heathrow opinion has caused political and economic upheaval, and ecstasy among “green” campaigners. That is because the decision in Spurrier et al. v. Secretary of State for Transport requires any airport expansion, and apparently any major infrastructure project going forward, comply with the 2015 Paris agreement.
As only the most recent judicial intervention leveraging purportedly “non-binding” commitments into legal obligations, this is also a very timely reminder for the United States.
President Obama agreed to Paris and submitted a ratification instrument on behalf of the U.S in September 2016, claiming it was not a treaty requiring Senate advice and consent. “Non-binding!” was a key talking point in support.
This claim, deficient in too many ways to recount here, is now overtaken by events.
Although the U.K. court also cited the U.K.’s own Climate Change Act and European Union Strategic Environmental Assessment (SEA) Directive, the judges ruled that the failure to account for the U.K.’s promised emission reductions under Paris was “legally fatal.” Any expansion plan must satisfy both domestic law and the U.K.’s Paris agreement promise to reduce carbon dioxide emissions.
Get used to hearing this. The lesson for President Trump is clear: Just because an international agreement doesn’t purport to be “binding” doesn’t mean you don’t have to comply with it.
In 2018, in Urgenda Foundation v. State of the Netherlands, The Hague Court of Appeals also turned these ostensibly hortatory climate promises and declarations into enforceable obligations. That court ordered the Dutch emission-reduction laws match years of governmental rhetoric manifested in supposedly aspirational climate pacts, asserting that parties to these agreements have assumed a “duty of care.”
Cheap environmental virtue can be costly. Certainly, activist state attorneys general intend to sue. As The Wall Street Journal’s Kim Strassel wrote in 2017, one of us “unearthed a legal memo from the New York attorney general’s office that laid out a strategy to get courts to force C02 cuts under international treaties.”
Already, federal judges have lined up to block proposed and even permitted projects, such as the Keystone XL Pipeline, citing to the National Environmental Policy Act (NEPA) and a failure to consider a project’s contribution to cumulative climate impacts. Under Paris, the United States vowed massive emission reductions and promised deeper cuts, every five years, in perpetuity.
In a June 2017 Rose Garden speech, Mr. Trump announced his intention to withdraw from Paris, citing U.S. sovereignty and “serious legal and constitutional concerns,” among others. Critics pounced. Why bother, they keened, with seemingly disproportionate and self-contradicting fury, it’s not even binding! Well.
Editorialists harrumphed that, by leaving Paris, Mr. Trump would also leave the United States as the only nation not signed up. Why, even China and India agreed.
But, not really. Like most countries, China and India did not promise emission reductions under Paris. Between them, they plan to build 320 airports in the next decade. The Maldives, self-styled poster child for the horrors of man-made global warming, is opening four more airports this year alone.
That is four more than the U.K. likely will be able to build, under the Court of Appeals’ Heathrow opinion. It is also four more than the United States should expect, should it rejoin Paris, which it might.
To judge by its terms, level of detail and commitment, and U.S. custom and practice, Paris is a treaty. Nonetheless, rather than declare Paris to be a treaty and transmit it to the Senate for a ratification vote, Mr. Trump is withdrawing pursuant to Paris’ terms. His November 2019 withdrawal notice takes effect Nov. 4, 2020, by chance the day after the U.S. elections.
Unfortunately, dignifying this “pen and a phone” approach leaves the door wide open for the United States to rejoin Paris under a President Biden or Sanders, who both promise to do so immediately upon taking office.
It is unlikely the president will change course and pursue more durable withdrawal options, and the Senate showed repeatedly under President Obama it has no appetite to fight even to protect its own constitutional prerogatives. As such, the Heathrow opinion putting the lie to the “non-binding” talking point should serve as a clear warning to the United States about the Paris agreement.
With such a clear distinction between Mr. Trump and his Democratic challengers, and with proof now that a “coronavirus economy” could be legally mandated, it is critical the United States have an actual debate about the Paris climate agreement and the larger climate policy agenda.