Monday, 14 November 2016

President Elect Donald Trump - Blackbox Energy?

Slowly the dust is settling after a hard-fought campaign to become next President of the United States. Donald Trump won that race for the White House - but what will his energy and climate policies look like and is he able to implement his ideas? In this short piece some of the pillars of his climate and energy policies are assessed and their legal feasibility discussed.

This post benefited greatly from additional research by Gijs Kreeft http://www.rug.nl/staff/g.j.kreeft/






Climate Law


Probably best known is Mr. Trump`s pledge to withdraw from the Paris Agreement, which was reached in December 2015. But is such a withdrawal realistic?
According to article 28 (1) of the Paris Agreement, parties to the Agreement may withdraw `a
t any time after three years from the date on which this Agreement has entered into force`. Since the Paris Agreement entered into force on 4 November 2016 (http://unfccc.int/paris_agreement/items/9444.php), a withdrawal via the route of article 28 (1) would be possible at 5 November 2019. According to article 28 (2) Paris Agreement the withdrawal would become effective `one year from the date of receipt by the Depositary of the notification of withdrawal, or on such later date as may be specified in the notification of withdrawal`. The earliest possible escape from the Paris Agreement would, accordingly, be around 6 November 2020 onwards.


However, there is a second, potentially quicker, legal route available to quit the Paris Agreement, article 28 (3). It says `Any Party that withdraws from the Convention shall be considered as also having withdrawn from this Agreement.`. As the Paris Agreement is part of the United Nations Framework Convention on Climate Change (UNFCCC), President Elect Donald Trump could opt for quitting the UNFCCC altogether. The rules on withdrawing from the UNFCC are similar to the rules just discussed. According to article 25 (1) of the 1992 UNFCC  three years must have lapsed since entry into force, before quitting the UNFCCC is available as an option. The UNFCCC went into force 21 March 1994 (http://unfccc.int/essential_background/convention/items/6036.php), so notifications of withdrawal might be issued immediately. For those notifications to become effective, however, a year must pass after reception of the notification (article 25 (2) UNFCC). Given that Donald Trump`s inauguration is scheduled for 20 January 2017 and he would move very quickly, the earliest possible date for quitting the UNFCC and the Paris Agreement would be early 2018. So far Mr. Trump has not announced whther or not he intends to pursue this pathway.



Energy Law

Furthermore, in terms of energy production, Trump´s main pledge was to lead the US to sustained energy independence (https://www.greatagain.gov/policy/energy-independence.html). This shall mainly be achieved by the use of fossil fuels. According to the website `the Trump Administration will encourage the production of these resources [fossil fuels] by opening onshore and offshore leasing on federal lands and waters. We will streamline the permitting process for all energy projects, including the billions of dollars in projects held up by President Obama, and rescind the job-destroying executive actions under his Administration.  We will end the war on coal, and rescind the coal mining lease moratorium, the excessive Interior Department stream rule, and conduct a top-down review of all anti-coal regulations issued by the Obama Administration.`


Notably, Trump also pledged to revive the controversial Keystone XL pipeline project, the fourth phase of the larger Keystone Pipeline System supposed to run from Alberta (Canada) to the US. The pipeline, if constructed, is intended to transport Canadian crude oil that is partly derived from controversial tar-sands to refineries in the mid and southern states of the US.                                    Following up on this plan would involve the reversal of an executive veto by the Obama administrationin 2015, which is blocking the project becauseof environmental concerns. This veto of the so called Keystone XL Approval Act at the time led to fierce criticism by Reince Priebus, Mr. Trump`s newly appointed Chief of Staff (http://www.nytimes.com/2015/02/25/us/politics/as-expected-obama-vetoes-keystone-xl-pipeline-bill.html?_r=1).





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