Wednesday, June 7, 2017

Does Withdrawal from the Paris Agreement Violate US Human Rights Obligations at Home?

President Trump's announcement that the US will withdraw from the Paris Accord may play into the hands of the plaintiffs in one of those pesky federal lawsuits being considered by one of those "so-called" federal judges.

In August 2015, a group of 21 activist youth and supporters initiated Juliana v. United States, a lawsuit against the US government for its failures to address climate change and shift away from fossil fuels to renewable alternatives. The government quickly sought to dismiss the case, which argues that the government policies violate substantive due process rights, equal protection, the people's rights under the 9th amendment, and the public trust doctrine.  In November 2016, the federal judge in Oregon denied the motion in a thoughtful opinion that some framed in human rights terms.  Her decision cleared the way for trial preparation.  Meanwhile, the government has sought to certify review of the opinion by the 9th circuit court of appeals, a move that has not been supported by several of the industry defendants.

Ultimate success on the Constitutional grounds in the novel Juliana case will require heavy lifting by the plaintiffs, but the withdrawal from the Paris Agreement will certainly contribute to the factual underpinnings of their suit, and perhaps to the substantive claims as well.  As a result of advocacy during the negotiation process, human rights are explicitly cited as a basis for the Paris Agreement.  While the operative provisions do not include human rights language, some argue that references to the Sustainable Development Goals, which incorporate human rights norms, bring human rights into operative processes of the Paris Agreement as well.  As a result, at least expert says that whatever its legality under the terms of the treaty itself, leaving the Paris Accord is a breach of US human rights obligations. 

This explicit identification of climate action with universal human rights norms developed with US input, will help support that argument that environmental stewardship is "fundamental to our scheme of ordered liberty and is deeply rooted in this nation's history and tradition" -- a critical component of the 5th amendment claim put forward by the Juliana plaintiffs.

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