Groningen Journal of International Law

International Law Under Construction

Biden-Harris Back to Paris – A Free Pass From the Past? An International Legal Perspective on the Reparations Still Due

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Mohit Khubchandani

Introduction

On 20 January 2021, Joe Biden took office as the 46th President of the United States of America (US), alongside Kamala Harris, the first female Vice-President. Among his first acts as President, Biden signed an executive order to rejoin the Paris Agreement on Climate Change, 2015 (PA). While this a welcome decision, this article argues that the US still owes reparations to the world for the transboundary environmental harms committed. There is no retrospective escape from the internationally wrongful acts committed by the past administration. The Trump Administration had announced its decision to leave the agreement in June 2017 but could legally exit it only in November 2020. Therefore, every climate adverse policy enacted in the interim period is something for which the nation owes as an apology to the world; a legal one, too. This is also an opportunity for the world to see, tactically and politically, how much this new administration is willing to take responsibility.

Drawing upon the author’s master’s thesis in International Environmental Law at Stanford Law School, titled ‘About time to knock the World Court’s Doors? The case against the US intent of premature exit and violations of the Paris Agreement on Climate Change’ (extract available here), this article emphasizes that the battle against the US and climate has only just begun. The US is amongst the highest polluting countries in the world, and it still rates as ‘critically insufficient’ in its commitments towards the PA.


PA’s Mandate for the US until 2030

Adopted under the aegis of the United Nations Framework Convention on Climate Change (UNFCCC) on 12 December 2015, the PA was unanimously signed by 197 and thereafter ratified by 190 States. It vows to reduce global temperature to below 20C of the pre-industrial levels by 2030, by cutting global emissions to minimize the effects of climate change. From a procedural standpoint, the PA requires all parties to put forward their best efforts through their “Nationally Determined Contributions” (NDCs), and to keep strengthening these efforts in the years ahead. This calls upon parties to report regularly on their emissions and implementation efforts. As per articles 9(6) and 14(1) of the PA, a global stocktake will also take place every five years, to assess the collective progress towards achieving the purpose of the PA. The next is in 2023. As a part of its NDC, the US committed to reduce its ‘greenhouse gas emissions’ (GHGs) by 26-28 percent below the 2005 level by 2025.

Climate Adverse Acts by the Trump Administration that Violated the Agreement Between 2016 – 2020

The obligations of the US under the PA arose when it entered into force in 2016. However, until the November 2020 exit from the agreement, the Trump administration took the following controversial climate adverse steps:

a.           Efforts to Revoke the Clean Power Plan

In October 2017, the Environment Protection Agency (EPA) officially proposed repealing the Clean Power Plan (CPP). The CPP, announced in August 2015, was former US President Barack Obama’s flagship policy to combat climate change. Pursuant to the international obligations under the PA, the US promised to lower the nation’s GHG emissions to 26–28 percent below 2005 levels by 2025. This happened against the backdrop of an ‘endangerment finding’ by the EPA in 2009, after the Massachusetts v. Environmental Protection Agency case in which the US Supreme Court held that greenhouse gases are air pollutants, and the federal states may sue the EPA if it fails to properly regulate these pollutants.

b.           Revocation of the Climate Action Plan

President Trump’s executive order on ‘Promoting Energy Independence and Economic Growth’ of March 2017 rescinded the Obama administration’s Climate Action Plan, which was never fully implemented. The executive order established a national policy in favour of energy autonomy and economic growth – this was meant to facilitate the development of US’s energy resources and to reduce unnecessary regulatory burdens associated with the development of those resources.  

c.           Lifting the Coal Leasing Moratorium

In March 2017, then-Secretary of the Interior Ryan Zinke formally lifted the ban on new coal leasing on federal land; a policy shift that was central to US President Trump’s executive order No. 3354 ‘Supporting and Improving the Federal Onshore Oil and Gas Leasing Program and Federal Solid Mineral Leasing Program’. The order faced opposition from environmentalists and public lands supporters. It provided no justification, besides asserting the ‘lack of scientific certainty’ standard, in permitting the coal leases. The scientific uncertainty defence brought forward in Zinke’s Order could, however, be easily addressed by reference to the precautionary principle approach enshrined under the Rio and Stockholm declarations.

Compensating Environmental Damages for Transboundary Environmental Harm: The Way Forward

In the Chorzow Factory Case, the PCIJ considered it a principle of international law that any breach of an agreement involves an obligation to make reparation, holding that reparation is “the indispensable complement of a failure to apply a convention, and there is no necessity for this to be stated in the convention itself”(¶73). This approach has also been affirmed in the environmental context by the ICJ in the Case Concerning the Gabčíkovo-Nagymaros Project. In the same year, interestingly, the ICJ delivered its first judgment on Environmental Compensation, in the Case concerning Certain activities carried out by Nicaragua in the border Area between Costa Rica and Nicaragua. Here, Judge Dalveer Bhandari gave a separate opinion, voicing the need for punitive damages in certain environmental harms (¶16, at P.101).

Finally, some benefit may be derived from current environmental compensation approaches to determine the quantum of damages owed by the US, such as the Travel Cost Method, the Hedonic Pricing Method, the Replacement Cost Method, and the Habitat and Resource Equivalency Analysis (HEA & REA); however, their incalculable elements are often excluded from the analysis, as explained in the next section. The following words, taken from my thesis, summarise the situation: “damage to the climate caused by US actions (or inaction) is almost impossible to calculate, making successful recourse to legal means on behalf of States affected by climate change a herculean task”.

The US Should Pay Lump-Sum Damages to its Neighbours and/or Concessions Through the Sustainable Development Mechanism (SDM) of the PA

While the aforementioned approaches may be beneficial in litigations, the political status-quo makes them a distant possibility. Moreover, the compensation techniques mentioned above cannot cover those elements which cannot be measured, such as cultural heritage, as stated by the UNFCCC in a technical paper discussing non-economic losses: “Cultural heritage can be tangible, for example historic buildings, or intangible, such as a body of traditional knowledge. Tangible cultural heritage is considered in here, however intangible has non-economic value because it contributes to social cohesion and identity”. The social value of a cultural site becomes even more complex when it has ecological value as well, such as Machu Picchu in Peru. Even for goods that have a market value, such as loss of trees – the value of timber will definitely not consider a resultant drop in air quality, subsequent public health problems, and increased costs on public health services in the area where the trees were cut since it is impossible to calculate these incidental harms. Therefore, a lump-sum/en-bloc agreement, which Lillich defines as “an agreement, arrived at by diplomatic negotiation between governments, to settle outstanding international claims by the payment of a given sum” may be considered when determining environmental compensation.

These examples show that environmental compensation techniques will, first, never be accurate, and, second, will be more valid in litigations. The regime of instituting a case against the US in any case requires analysis of limitations and possibilities under the compromissory clause of the UNFCCC, which is beyond the purview of this article.

While we are discussing peaceful solutions and testing the bona fides of the current government, the real test will be to see if goodwill lump-sum amounts will be paid by the Biden Administration. It could do so by paying these amounts to its neighbouring countries, based on fair and equitable considerations. Offering huge concessions under the sustainable development mechanism (SDM) of the PA as a gesture to undo the damage done by the previous administration, shall be a reminder that the US — in a utopia — shoulders a larger common and rightly differentiated responsibility towards the climate. These contributions may also pave the way for the US in achieving an economic balance by forging conducive transferable climate-financing arrangements with some Latin American countries through the SDM under Article 6 of the PA.

Mr. Mohit Khubchandani is a Judicial Fellow at the International Court of Justice, Netherlands. He has worked with several United Nations agencies in the past: such as the United Nations International Law Commission, Geneva; Office of Coordination of Humanitarian Affairs at the UN Secretariat, New York; Permanent Mission of India to the United Nations, New York. He has also worked at the Office of the Attorney General for the Republic of India. Mr. Khubchandani completed his LL.M. in International Environmental Law from Stanford Law School, USA where he wrote his thesis on the United States and the Paris Agreement, which was later published with the Max Planck Yearbook of United Nations Law.

*Views are strictly personal and not reflective of those by the organisations the author is or has been associated with in the past.

LinkedIn: https://www.linkedin.com/in/mohit-khubchandani-57829751/

Mohit tweets @MohitKhubchan10

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