CLIENT ALERT
By: Robert Lucic | January 25, 2021
Shortly after his Inauguration on January 20, President Biden signed a series of Executive Orders, many of which dealt with the federal government’s response to the Covid pandemic, the distribution of vaccines and immigration policy. Among them was an Order which announced the United States would rejoin the Paris Climate Agreement, reversing former President Trump’s policy:
I, Joseph R. Biden Jr., President of the United States of America, having seen and considered the Paris Agreement, done at Paris on December 12, 2015, do hereby accept the said Agreement and every article and clause thereof on behalf of the United States of America.
Although the intent to withdraw was announced on June 1, 2017, the formal withdrawal did not take place until November 4, 2020, one day after the election. Based on the Executive Order, the U.S. will formally rejoin the Paris Agreement in thirty days, on February 19, 2021. The U.S. will only have been technically out of the Paris Agreement for a little over three months.
The Paris Agreement operates through a series of aspirational 5-year plans, which are supposed to get progressively more aggressive in terms of reducing greenhouse gases. The U.S. previously established its National Determined Contribution (NDC). There are two parts to the NDC: (1) what actions will the U.S. take to reduce greenhouse gas emissions and (2) what actions it intends to implement to adapt to climate change. The U.S., prior to withdrawal, announced that it intended by 2020 to reduce greenhouse gases by 17% from 2005 levels and 26-28% by 2025. It set its long-term strategy (LT-LEDS) for an 80% reduction by 2050. It is not yet clear whether the U.S. met its 2020 target. Despite the U.S. withdrawal, U.S. carbon emissions reportedly declined as a result of the pandemic.
In November 2017, the Lex Mundi Environmental and Energy & Natural Resources Practice Groups held a joint meeting at Columbia University in New York focusing on legal issues related to climate change, sponsored jointly by Houthoff from the Netherlands and Sheehan Phinney. The U.S. lawyers were largely sidelined during the discussions on federal policy implementation of the Paris Agreement since the intent to withdraw had been announced months earlier, leaving our Canadian, European, South American and Asian colleagues to discuss what their respective governments were doing to set CO2 targets and how aggressive those governments intended to be in enforcing those limits. Much of the discussion by the U.S. lawyers was on the legal issues that were arising because of climate change, not on implementation of the Paris Agreement.
In November 2019, the Lex Mundi groups met again, this time in Paris, hosted by Gide Loyrette Nouel. Part of the meeting was devoted to learning how the respective countries were faring in their first 5-year plans (the Paris Agreement was finalized on December 12, 2015 with many members countries signing on in early 2016, with the U.S. signing on April 22, 2016).
Prior to our meeting at Gide, the U.S., however, had followed through on its plan to formally withdraw (effective one year later) from the Paris Agreement. Again, the U.S. lawyers present had little to contribute to the policy and implementation discussions. The U.S. had no federal-level implementation policy at the time.
President Biden had previously indicated that he wants the U.S. to be carbon-neutral by 2050, which is even more aggressive than the goal stated by the U.S. in 2016, but consistent with what some other industrialized countries (the United Kingdom, Japan, France) have set as targets. China has indicated it intends to be carbon neutral by 2060.
The next major deadline will be the establishment of the Enhanced Transparency Framework (ETF) in 2024. ETF is the mechanism for each member country to report on its actual progress towards meeting its stated targets and was a major point the U.S. insisted be part of the Paris Agreement during negotiations. The new Administration will have its work cut out for it to meet the ETF requirements once it gets its team in place.