The Paris Paradigm

65 Pages Posted: 27 Feb 2018 Last revised: 30 Mar 2018

Frederic G. Sourgens

Washburn University - School of Law

Date Written: February 15, 2018

Abstract

Global public discourse asserts that the Paris Agreement represents an irreversible turning point in the fight against climate change. The public outcry was correspondingly great when the Trump administration announced its intention to abandon the Paris Agreement. The Trump administration since has acted swiftly to repeal key regulations promulgated to implement U.S. Paris commitments, chief among them the Clean Power Plan. Problematically, the U.S. constitutional law literature on the Paris Agreement so far submits that neither the Paris Agreement nor commitments made pursuant to the Paris Agreement are an impediment to this policy reversal by the Trump administration. This directly contradicts the global expectation of what was achieved at Paris.

The Article submits that the existing constitutional law literature incorrectly treats the Paris Agreement as a purely procedural executive agreement. The Article relies upon transnational law theory to show that the Paris Agreement and action taken pursuant to it instead constitute a global governance network. The Article then develops a “Paris Paradigm” governing presidential authority to commit the U.S. in such global governance networks. The Article uses the under-theorized category of implied Congressional delegation of foreign affairs authority in Youngstown to shows that the President has the authority to enter into, and unilaterally to make commitments within, such a global governance networks in reliance upon domestic rulemaking authority. The President must however act with constitutional good faith to make and such commitments.

The Article concludes that the Paris Paradigm has important repercussions for attempts by later administrations to undo administrative rules that support global governance commitments (such as the Clean Power Plan). Statutory canons of construction presume that acts of Congress comply with U.S. international legal obligations. This presumption requires that administrative agencies may not rely upon statutory authority to repeal a rule when doing so would violate an international legal obligation of the United States. To repeal or replace regulations promulgated as part of a global governance network commitment, a later administration thus has to show that the original regulation fell outside the good faith regulatory authority of the agency promulgating it or that the new proposed rule continues to meet existing global governance commitments. Reconceived as a global governance network, the Paris Agreement therefore represents a paradigmatic impediment to current efforts by the Trump administration to repeal regulations such as the Clean Power Plan.

Keywords: international law, constitutional law, foreign relations law, environmental law, administrative law

Suggested Citation

Sourgens, Frederic G., The Paris Paradigm (February 15, 2018). University of Illinois Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3125923 or http://dx.doi.org/10.2139/ssrn.3125923

Freddy G. Sourgens (Contact Author)

Washburn University - School of Law ( email )

1700 College Avenue
Topeka, KS 66621
United States

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