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Moderator: Paul Joffe (World Resources Institute)
Speakers: Susan Casey-Lefkowitz (Natural Resources Defense Council), E. Donald Elliot (Yale University School of Law), Carl Bruch (Environmental Law Institute)
Paul Joffe began with a history of the Kyoto Protocol and Paris Agreement, the latter of which is a hybrid instrument with both binding procedural aspects and non-binding targets. Each country develops plans in five-year cycles, with peer pressure rather than sanctions to promote compliance. Advocates therefore recognize the need for further commitments, but there are now questions about whether the US can meet its existing obligations. If the Trump administration does withdraw, what will the justification be, and how will it “keep a seat at the table”, as Secretary Tillerson said?
Mr. Joffe posed several additional questions for the panel: What is the administration’s stance on climate change? What economic, political and other forces combined with international law might keep the momentum? What role can international lawyers and intergovernmental organizations play?
Don Elliot observed that the Trump administration appears to be returning to the position of the first six years of the George W. Bush administration, though it is not yet clear what that means for policy. He cautioned that many fears are overstated, as Trump’s pledge in October 2015 to abolish the Environmental Protection Agency (EPA) has not been repeated, and the proposed $2.6 million budget cut would simply revert the agency to the size it had been in the previous 7 administrations. In that period, many environmental problems improved, while the budget and agency size continued to increase. Professor Elliot also believes the trend toward “grid parity” for solar and other non-fossil fuel power is unstoppable. He also suggested that an awareness of New York real estate culture is useful in understanding the current administration’s negotiation tactics. In that culture, a contract is merely a starting point for renegotiation, and it is common to use threats of undesirable outcomes as a way to move the other party toward compromise. He cautioned that not all business techniques translate well to politics, and it is unclear how this one will work on the international scene.
Susan Casey-Lefkowitz discussed the international implications of the change in leadership, and noted that the current state is one of uncertainty. Describing her recent meetings in China, she observed that the Chinese know they are expected to step up as leader in the environmental domain, but do not know what that leadership requires. The question is whether anyone can effectively bring nations together to achieve progress against the devastating impacts of climate change, including the economic impacts. The White House’s current position on Paris seems to be mixed, with the US likely to remain within the agreement while modifying its reduction targets. However, withdrawal from Paris, and even the UN climate change convention, is still possible, and the political and economic effects would be disastrous. The US is already facing criticism by other governments, which may result in a weakened position on trade and competition, as well as a reduced ability to advocate for transparency and accountability.
Ms. Casey-Lefkowitz then addressed role of the state and municipal governments, and noted that regardless of shifts in federal policy, action is likely to continue at the state and local level due to the economic incentives. For example, even if the Trump administration attacks CAFE auto fuel efficiency standards, California is committed to higher fuel efficiency for cars, and as it constitutes one-third of the US market, manufacturers will continue to produce cars at the stricter requirements. Similarly, states are continuing to make progress on clean power because it makes good business sense.
Carl Bruch observed that the Trump administration is receptive to business interests, and even industries that are not environmental champions have expressed a need to be at the table. Given the administration’s affinity for transactional deal-making, it might be possible to achieve environmental goals by including them within a larger package of measures it wants to achieve. In addition, Republicans are receptive to national security arguments, and there is a rapid growth in awareness of environmental issues within the US military. Secretary of Defense Mattis specifically mentioned during his confirmation hearings the negative impacts of climate change on troop security. Mr. Bruch suggested several areas of possible engagement, including environmental rule of law, and “Roosevelt Republican” concerns like national parks, hunting and wildlife. He also noted that the multiplicity of global actors could lessen the impact of US policy shifts; for example, the EU has strengthened restrictions on conflict minerals, and businesses wishing to work within the EU must still comply with the stricter rules. In addition, there is a trend toward shaping coalitions of like-minded countries to set higher domestic standards on issues of mutual concern.
Mr. Joffee posed additional questions to the speakers: What to tell countries most impacted by climate change, particularly small island states? How can international law deal with the lack of sanctions and binding targets in the Paris Agreement? How should environmental advocates react to the return to standards and policies of the George W. Bush era?
Mr. Bruch emphasized the negative consequences of waiting to act, and the importance of changing the culture so that lawmakers will be motivated to consider environmental impacts. He agreed that in light of the administration’s lack of focus on climate change, others would have to assume leadership.
Professor Elliot added that technology has a role in addressing climate change, citing projects in Canada, Saudi Arabia and China to advance solar energy production, convert atmospheric CO2 to fuel, and shift away from coal by necessity.
Ms. Casey-Lefkowitz reiterated that even with a crisis of US leadership, there is still progress on the ground in the US and elsewhere due to the urgency of the need for action, and the increased awareness of the environmental crises in the years since the second Bush administration. She also emphasized the importance of civil society involvement.
Questions from the audience addressed the role of bilateral agreements, and the impact of the U.S. lowering its standards under Paris rather than withdrawing entirely.