President Trump’s decision to withdraw the United States from the Paris Climate Accord is a courageous decision that has an unexpected ally — the United State Supreme Court.
The rigorous and costly regime that Paris would have required of the United States in terms of caps on carbon dioxide emissions and industrial growth are hauntingly familiar to those of us who challenged the Obama regulatory overreach on the very same matter — achieving specific reductions of carbon dioxide emissions without congressional review and outside the scope of existing law.
A quick history lesson on greenhouse gas emissions regulation during the Obama years: During the first two years of the Obama presidency, Congress failed to pass so-called “cap-and-trade” legislation that would require emitters to purchase credits and trade them on international carbon markets — despite Democratic majorities in both chambers. The trillion-dollar carbon trading markets would have been a boon to large financial institutions, but would have destroyed America’s remaining industrial base. As Obama promised in 2008, consumer power bills and fuel prices would “necessarily skyrocket.”
As a result, Obama turned loose the regulatory dogs at the U.S. Environmental Protection Agency to achieve through administrative action what he could not achieve through Congress. In 2010, the EPA unleashed a series of draconian greenhouse gas restrictions that the EPA itself admitted in litigation would lead to “absurd results” and was “unenforceable.”
The EPA further admitted that, if its measures were followed, there would be a net reduction in global temperature by the year 2100 of approximately .01 degrees Celsius — a figure so small that current technology would have trouble measuring it. The cost for compliance? The rules would cost more than $300 to $400 billion a year, and significantly raise the price of gas at the pump and energy in the home, and eventually churches, schools, restaurants, hospitals, and farms would be regulated. According to a range of economic studies, 2.5 million American jobs would disappear by 2030.
The Supreme Court’s opinion in the 2014 case turned not on science, but rather on the Constitution itself. The court held that the Clean Air Act did not authorize the EPA to engage in unfettered rulemaking without congressional review, and that separation of powers required checks and balances on the Executive. Writing for the majority, Justice Antonin Scalia said, “We are not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery. We reaffirm the core administrative-law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute [Clean Air Act] should operate.”
Following that stinging rebuke, Obama’s EPA nevertheless moved forward with the so-called “Clean Power Plan,” a regulatory effort that was the result of a sue-and-settle lawsuit against the EPA (again, bypassing congressional review). Quick legal challenges against the Plan, citing the 2014 Supreme Court decision slamming executive overreach, compelled the high court to put the Plan on ice. President Trump essentially finished it off with a recent executive order.
President Obama, having been rebuked by Congress and the Supreme Court in his efforts to radically control U.S. environmental policy, turned back to his trusty pen. Despite weighty analysis that concludes the Paris Accord is a treaty, which requires Senate approval, Obama unilaterally entered the international agreement on behalf of the United States to achieve what he could not through constitutional means.
The Paris terms — including limits and rollbacks on emissions and output — mirror much of the previously failed and unconstitutional efforts in which Obama and his EPA were engaged. In order to comply with the terms of the Paris Accord, the non-treaty treaty would have compelled regulatory actions that the Supreme Court has already determined are beyond the scope of presidential authority. Congress would have to approve. It hasn’t, and it won’t.
As Trump administration officials have said, the decision to leave Paris turned not on science and not on America’s ongoing commitment to clear air and water. Americans are widely aware of the fact that the U.S. today operates at pre-1994 emissions levels, and we will continue to improve as technology makes it possible.
Rather, the decision turned on the cost-benefit analysis familiar to business executives, which clearly reveals nearly non-measurable environmental gains at extreme cost, which equals a bad deal. More importantly, the Supreme Court has made it patently clear that Executive authority has decisive limits by design. If you want the regulations, Congress must pass them, and the president must sign them into law.
Todd Young serves as Executive Director for Southeastern Legal Foundation (SLF), an Atlanta-based national constitutional public interest law firm founded in 1976. In his role at SLF, he has worked closely in an advisory capacity with former U.S. Attorney General Edwin Meese III, former Independent Counsel Judge Kenneth Starr, former Speaker of the House Newt Gingrich, and various members of Congress and state governors and attorneys general.