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THE PARIS AGREEMENT IN THE 2020S:

BREAKDOWN OR BREAKUP?

NOAH M. SACHS

Abstract

Just four years after adoption of the Paris Agreement, there are serious

warning signs that the Agreement could unravel in the 2020s. Not only did

President Trump’s 2017 withdrawal announcement damage the universality

and reciprocity of the Agreement, but many parties are not on track to reach

their own voluntary carbon reduction pledges.

This Article shows how and why the Paris Agreement could falter. I explore

the recent stressors on the Agreement and challenge the dominant scholarly

narrative that I call the “peer pressure proposition”—the view that

international peer pressure will encourage parties to ramp up their pledges

over time. Highlighting the flawed assumptions of the peer pressure

proposition, I provide a more nuanced, pragmatic account of the prospects

for cooperation under the Agreement in the 2020s.

While no outcome can be predicted with certainty, I argue that policymakers

will plausibly face a Breakdown scenario in the next decade, where the Paris

Agreement lapses into ineffectiveness, or even a Breakup scenario, where the

Paris Agreement collapses and parties withdraw or disengage. Either scenario

would be ecologically devastating, and I explore the implications of both

scenarios for international law and the climate change regime.

Professor, University of Richmond School of Law and Director, Robert R.

Merhige Jr. Center for Environmental Studies. The author is grateful to numerous

colleagues who provided helpful suggestions on successive drafts, including the

participants at the University of Colorado environmental law symposium and the

University of Oregon Public Interest Environmental Law Conference. The author

particularly wishes to thank Jim Salzman, Doug Kysar, Sarah Krakoff, Ann Carlson,

Jim Gibson, Corinna Lain, and the faculty who attended the University of Richmond

workshop for early-stage writing. The author also wishes to thank Marina Leary,

Lindsey Rhoten, and Sara Morrison for invaluable research assistance.

Electronic copy available at: https://ssrn.com/abstract=3463892

2 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

INTRODUCTION

The Paris Agreement is widely hailed as a triumph of international

diplomacy.

After twenty years of contentious United Nations climate

summits that failed to slow the rise in greenhouse gas (GHG) emissions, the

Paris Agreement quickly entered into force and now has near-universal

adherence. Over 180 nations have made voluntary pledges to reduce their

GHG emissions, with the collective goal of limiting global warming to “well

below” two degrees Celsius above pre-industrial levels.

In the wake of the

2015 Paris conference, most diplomats and international law scholars

asserted that the Agreement’s voluntary structure could succeed.

In any case,

there was no viable alternative. Paris had to succeed.

Just four years after diplomats drew this line in the sand to limit

emissions, it could be swamped by a rising tide. As we enter the 2020s, the

Agreement has been unable to constrain the world’s emissions growth. Most

parties are falling short even of their initial, tepid pledges to reduce

emissions, called Nationally Determined Contributions (NDCs). Global

GHG emissions, which flattened between 2014 and 2016, are once again

surging to record annual highs.

Paris Agreement to the United Nations Framework Convention on Climate

Change, Dec. 12, 2015, T.I.A.S. No. 16-1104.

Id. [1], Art. 2. The full statement of the treaty’s objective is to keep global

warming to “well below” 2 degrees Celsius compared to pre-industrial temperatures

while “pursuing efforts” to limit the temperature increase to 1.5 degrees Celsius,

“recognizing that this would significantly reduce the risks and impacts of climate

change.” Id. [1]

Cinnamon P. Carlane & J.D. Colevecchio, Balancing Equity and

Effectiveness: The Paris Agreement & the Future of International Climate Change

Law 4-5 (Ctr. for Interdisc. Law and Pol’y Stud., Working Paper No. 477, 2019);

John C. Dernbach & Donald A. Brown, Making the Paris Agreement Work (The

Environmental Forum, Research Paper No. 15-42, 2016); The Road to a Paris

Climate Change Deal, N.Y. TIMES (Dec. 11, 2015),

https://www.nytimes.com/interactive/projects/cp/climate/2015-paris-climate-

talks/the-end-game-france-aims-for-final-climate-deal-draft-on-saturday; Alexandra

Zavis et al., Nearly 200 Nations Join Together to Fight Climate Change in Historic

Paris Agreement, L.A. TIMES (Dec. 12, 2015),

http://www.latimes.com/world/europe/la-fg-climate-talks-20151212-story.html.

In May 2019, the concentration of atmospheric greenhouse gases surpassed

415 parts per million, the highest concentration in at least 3 million years. The

atmospheric GHG concentration is now 40 percent higher than in 1990, when

international climate change negotiations began under UN auspices. National

Oceanic and Atmospheric Administration, NOAA’s Greenhouse Gas Index Up 40

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PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

Climate change politics have turned markedly darker since 2015. In

2017, President Trump announced that the United States—the second largest

greenhouse gas emitter—would withdraw from the Agreement.

The

announcement dashed hopes that major GHG emitters would be role models

for ambitious policies, and global media outlets aptly characterized Trump as

raising his middle finger to the rest of the world.

Commitments to aggressive climate action are faltering elsewhere.

In 2018, Brazilian voters elected right-wing populist President Jair

Bolsonaro, a Trump acolyte who campaigned on withdrawing Brazil from

the Agreement.

The 2019 Australian elections were a referendum on

changing the country’s weak climate policies, and voters returned the

incumbent, pro-coal conservative coalition to power.

In France, a new fuel

tax equivalent to twenty-five cents per gallon led to the “yellow vest” riots of

2018.

These developments took place against a backdrop of increasingly

dire warnings from scientists. In 2018, the Intergovernmental Panel on

Climate Change (IPCC) released a long-awaited report showing that the

impacts of warming above 1.5 degrees Celsius will be catastrophic and that

Percent Since 1900 (July 11, 2017), https://www.noaa.gov/news/noaa-s-greenhouse-

gas-index-up-40-percent-since-1990.

Why Trump Actually Pulled Out of Paris, POLITICO, June 1, 2017.

Trump Just Gave the World the Middle Finger, WASH. POST, June 2, 2017;

Trump Bailing on the Paris Agreement Would be a Middle Finger, CNN (June 1,

2017);; Trump May Rue His Middle Finger to Europe, FOREIGN POLICY, June 6,

2017.

Bruce Douglas, “Brazil’s President-Elect Questions Paris Climate Deal

Again,” BLOOMBERG, Dec. 12, 2018,

https://www.bloomberg.com/news/articles/2018-12-12/brazil-s-president-elect-

questions-paris-climate-accord-again.

Bruce Douglas, “Brazil’s President-Elect Questions Paris Climate Deal

Again,” BLOOMBERG, Dec. 12, 2018,

https://www.bloomberg.com/news/articles/2018-12-12/brazil-s-president-elect-

questions-paris-climate-accord-again; Damien Cave, It Was Supposed to be

Australia’s Climate Change Election, What Happened?, N.Y. TIMES, May 19, 2019.

Adam Nossiter, France Suspends Fuel Tax Increase That Spurred Violent

Protest, N.Y. TIMES, Dec. 4, 2018,

https://www.nytimes.com/2018/12/04/world/europe/france-fuel-tax-yellow-

vests.html.

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4 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

governments have just twelve years to slash emissions by nearly fifty percent

to stay on a trajectory to avoid that outcome.

This is the context in which the Paris Agreement enters the 2020s,

and it is not an optimistic one. The Agreement, which was designed to last

decades, is still getting off the ground, and it is too early to write it off as

ineffective or doomed to failure. But these warning signs bode poorly for the

coming decade, when the emissions cuts necessary to avoid catastrophic

climate change are far more stringent than any nation has ever attempted.

Can the Agreement succeed against this backdrop? The appropriate

metric for success, it should be acknowledged, is not whether the Agreement

can “solve” global warming in the 2020s, or even later. Rather, it is whether

the Agreement can sustain political commitments to meaningful emissions

reductions through the 2020s and beyond.

But even by that metric, there are

signs that the Paris Agreement could falter.

In this Article, I argue that within the next decade, the Paris

Agreement could plausibly fall into a downward spiral of dissent,

dysfunction, and disengagement. My goal is to identify the causes of a

downward spiral, sketch possible scenarios, and analyze the potential impact

of a downward spiral on the environment, international law, and the global

climate change regime. While other scholars have noted the possibility of

failure of the Paris Agreement,

I show how and why failure could unfold.

My arguments challenge the conventional scholarly narrative that the

Paris Agreement will succeed because parties will pressure each other, in a

kind of virtuous circle, toward increasingly deep emissions cuts—a view that

I call the “peer pressure proposition.” Many of the assumptions behind the

peer pressure proposition are faulty, and in the wake of the United States’

INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, SPECIAL REPORT:

GLOBAL WARMING OF 1.5 C, SUMMARY FOR POLICY MAKERS 14 (2018); Chris

Mooney & Brady Dennis, The World Has Just Over a Decade to Get Climate Change

Under Control, U.N. Scientists Say, WASH. POST (Oct. 7, 2018),

https://www.washingtonpost.com/energy-environment/2018/10/08/world-has-only-

years-get-climate-change-under-control-un-scientists-

say/?utm_term=.4473266e094e; Justin Worland, Scientists Just Laid Out Paths to

Solve Climate Change. We Aren’t on Track to Do Any of Them, TIME (Oct. 8, 2018),

http://time.com/5418134/ipcc-climate-change-report-2030-crisis/.

Robert Falkner, The Paris Agreement and the New Logic of International

Climate Politics, 92 INT’L AFF. 1107, 1119 (2016) (arguing that the Paris Agreement

should be judged on whether “it provides a robust yet adaptable framework for

developing and sustaining long-term political commitment to an effective global

response.”).

See Miranda A. Shreurs, The Paris Climate Agreement and the Three Biggest

Emitters: China, the United States, and the European Union, 4 POLITICS AND

GOVERNANCE 219, 222 (2016); Oran R. Young, The Paris Agreement: Destined to

Succeed or Doomed to Fail?, 4 POLITICS AND GOVERNANCE 124, 132 (2016); Harro

van Asselt, International Climate Change Law in a Bottom-Up World, 6 QIL. 26

(2016).

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PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

withdrawal announcement, the role of peer pressure in the Paris Agreement

needs critical analysis. In this Article, I provide a fuller, more pragmatic

account of why nations will cooperate—or not cooperate—as the necessary

emissions cuts become steeper and costlier.

After describing the potential for a downward spiral and the factors

provoking it, this Article explores two possible ways that a downward spiral

could unfold in the 2020s.

The first possible scenario is what I call “Breakdown.” In

Breakdown, the Paris Agreement would still remain the premier international

forum for climate change negotiations, but its impact on reducing global

emissions would be modest. In the 2020s, parties may fall short of their own

GHG reduction pledges, reduce the ambition of their future pledges, or

purposely slow-walk pursuing their goals out of frustration with the progress

of other parties. As parties recognize their inability to halt the global rise of

climate-disrupting emissions after a decade of implementing the Paris

Agreement, acrimony and dissension will increase, and the number of

committed nations may dwindle.

A second possible scenario for the 2020s is what I call “Breakup”—

the collapse of the Paris Agreement. Breakup could occur through

environmental shocks to the system (such as heat waves, flooding, massive

crop loss, ice sheet collapse, or mass migrations). These calamities would

highlight for the world that the slow pace of reductions under the Paris

Agreement, and its voluntary architecture, will not meaningfully address

climate disruption.

In Breakup, parties may formally withdraw from or

otherwise abandon the Agreement. Committed nations might seek alternative

arrangements, such as acting through smaller “clubs” of nations with

common interests

or using financial power, trade sanctions, or border taxes

to compel GHG reductions by other states.

See Oran R. Young, supra note [12], at 124 (noting that public arousal around

climate change would increase dramatically if there is “some sort of climate shock

that jolts wide swaths of the public into taking climate change seriously”).

See, e.g., David Victor, “Making the Promise of Paris a Reality” in THE PARIS

AGREEMENT AND BEYOND: INTERNATIONAL CLIMATE CHANGE POLICY POST-2020

17 (Robert N. Stavins & Robert C. Stowe eds., Harv. Project on Climate Agreements

2016) (noting the transaction costs of bargaining among large groups of countries

and suggesting that progress is likely to come from smaller groups).

FLANNERY ET AL., FRAMEWORK PROPOSAL FOR A U.S. UPSTREAM

GREENHOUSE GAS TAX WITH WTO COMPLIANT BORDER ADJUSTMENTS, RESOURCES

FOR THE FUTURE (2018), https://www.rff.org/publications/working-

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6 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

Breakup could also result from longstanding disputes between

developing and developed states. Developing countries may exit en masse

from the Paris Agreement if promised funding from developed countries

never materializes or if major industrialized emitters fall short of their

pledges. Breakup could occur if major emitters follow the United States and

withdraw from the Agreement, or if the United States never rejoins it. The

U.S. 2020 election will be pivotal in determining the probability of Breakup.

There is, of course, a third possible scenario—which I call an

“upward spiral.” In this scenario the Paris Agreement works as intended and

governments commit to, and achieve, progressively deeper emissions

reductions. It is possible that dramatic improvements in energy efficiency,

renewable energy deployment, or battery storage in the 2020s could spur an

upward spiral.

Carbon capture systems could emerge at scale.

Citizens

could mobilize to pressure their governments toward stringent emissions

cuts. If so, all of these developments would facilitate global cooperation, and

the Paris Agreement can be effective if it can ride on these opportunities.

This optimistic scenario (which is the intended vision of the

Agreement) has been extensively explored elsewhere,

and it is not my

principal aim to explore it here. Given the challenges of the 2020s, states

must be prepared for the possibilities of Breakdown and Breakup.

To be clear, I do not contend that any specific language in the Paris

Agreement will cause Breakdown or Breakup, or that tweaks to the language

could avoid a downward spiral. Rather, the destabilizing factors are

exogenous to the Agreement and reflect the strategic interests of major

powers. The problem is not the treaty’s language. It is that climate change,

papers/framework-proposal-for-a-us-upstream-greenhouse-gas-tax-with-wto-

compliant-border-adjustments/; David A.C. Bullock, Combating Climate

Recalcitrance: Carbon-Related Border Tax Adjustments in a a New Era of Global

Climate Governance, 27 WASH. INTL. L. J. 609 (2018) (advocating carbon border

taxes).

Id. at 128; Raymond Clemencon, The Two Sides of the Paris Climate

Agreement: Dismal Failure or Historic Breakthrough?, 25(I) Journal of

Environment & Development 3, 20 (2016); Fergus Green, This Time is Different:

The Prospects for an Effective Climate Agreement in Paris 2015, CTR. FOR CLIMATE

CHANGE ECON. AND POL’Y 25 (October 2014).

Pete Smith, Soil Sequestration and Biochar as Negative Emission

Technologies, 22 GLOBAL CHANGE BIOLOGY 315, 315–24 (2016); Duncan McLaren,

A Comparative Global Assessment of Potential Negative Emissions Technologies,

90 PROCESS SAFETY AND ENVTL. PROTECTION 489, 489–500 (2012).

See, e.g., Niklas Höhne et al., The Paris Agreement: Resolving the

Inconsistency Between Global Goals and National Contributions, 17 CLIMATE

POL’Y 16, 17 (2016); Peter Christoff, The Promissory Note: COP 21 and the Paris

Climate Agreement, ENVTL. POLITICS 765, 778 (2016); Falkner, supra note [11] at

1119.

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PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

by its very nature, creates thorny, intractable incentives toward non-

cooperation and free-riding.

Climate change is the ultimate intra-

generational and inter-generational prisoners’ dilemma.

The Paris

Agreement may have papered these conflicts over for a while, but it has not

solved them.

This Article proceeds as follows: In Part I, I discuss the original

vision of the Paris Agreement and specifically how its “ratchet mechanism”

was intended to raise the ambition of GHG reduction pledges over time. In

Part I, I also interrogate the concept of the “peer pressure proposition,” which

many hope will sustain progress under the Agreement. I discuss reasons for

skepticism and conclude that peer pressure is unlikely to propel states toward

achieving the temperature goals of the Agreement.

In Part II, I explore the major tensions in the international climate

regime that have arisen since 2015, tensions that call into question both the

ratchet mechanism and the peer pressure proposition. I focus on the impact

of the U.S. withdrawal from the Paris Agreement, the likelihood that parties

will not achieve their existing NDCs, the alarming scientific reports about the

dramatic scale of emissions reductions that must occur in the 2020s, and

financial conflicts among the parties.

Given these recent trends, I explore, in Part III, how Breakdown and

Breakup scenarios could unfold. I explore the implications of Breakdown and

Breakup for international law and discuss how the near-term stressors on the

Agreement could result in its unraveling.

I. THE PARIS RATCHET

AND THE PEER PRESSURE PROPOSITION

To understand the current tensions in the climate change regime, it

is important to understand the original vision of the Paris Agreement: a vision

See Richard J. Lazarus, Super Wicked Problems and Climate Change:

Restraining the Present to Liberate the Future, 94

CORNELL L. REV. 1153, 1183 (2009); Robert O. Keohane & David G. Victor,

Cooperation and Discord in Global Climate Policy, 6 NATURE AND CLIMATE

CHANGE 1, 1 (2016); Robert O. Keohane & Michael Oppenheimer, Paris: Beyond

the Climate Dead End Through Pledge and Review?, 4 POLITICS AND GOVERNANCE

1, 3 (2016).

Stephen M. Gardiner, A Perfect Moral Storm: The Tragedy of Climate

Change 11 CROATIAN JOURNAL OF PHILOSOPHY 376, 376–82 (2011); Stephen M.

Gardiner, Ethics and Global Climate Change, 114 ETHICS 555 (2004).

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8 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

of progress building upon progress. Under the Agreement’s “pledge and

review” system, parties made initial national emissions reductions pledges in

2015-2016. Parties are scheduled to review their progress in meeting these

pledges every five years, beginning in 2023. As progress is documented, the

expectation is that parties will scale up their pledges to provide an aggregate

reduction in GHG emissions sufficient to limit warming to “well below” 2

degrees Celsius, the temperature goal of the treaty.

This vision requires

trust, transparency, and flexibility.

The parties have already taken the first step in that vision. To date,

184 nations have submitted greenhouse gas reduction pledges, called

Nationally Determined Contributions (NDCs).

These NDCs are typically

phrased as national goals to achieve specified percentage reductions in

emissions when compared against a baseline year (for example, 25 percent

reduction below a nation’s 2005 emissions levels by 2030). Many developing

nations’ NDCs detail specific actions that the country will undertake (such as

committing to install 1000 MW of solar capacity by 2030). Chile, for

example, committed to reforest land.

China committed to promote

renewable energy.

India committed to both.

The Paris Agreement requires, as a binding treaty obligation, that

each party submit an NDC and report on progress.

However, at the

insistence of the Obama Administration, which cited the need to avoid Senate

ratification, there is no legally binding requirement to actually achieve the

goals set forth in an NDC.

It is up to each party to implement policies to

achieve its NDC, and there is no sanction for failing to reach the target.

Andrew Frank, The Promissory Note: COP 21 and the Paris Climate

Agreement, 25 ENVTL. POL. 765, 787 (2016); Niklas Hohne et al., The Paris

Agreement: Resolving the Inconsistency Between Global Goals and National

Contributions, 17 CLIMATE POL’Y 16, 24 (2016).

https://www4.unfccc.int/sites/ndcstaging/Pages/Home.aspx

Intended Nationally Determined Contribution of Chile Towards the Climate

Agreement of Paris 2015 (2015),

http://www4.unfccc.int/ndcregistry/PublishedDocuments/Chile%20First/INDC%20

Chile%20english%20version.pdf.

Enhanced Actions on Climate Change: China’s Intended Nationally

Determined Contributions (2015),

http://www4.unfccc.int/ndcregistry/PublishedDocuments/China%20First/China%2

7s%20First%20NDC%20Submission.pdf.

India’s Intended Nationally Determined Contribution: Working Towards

Climate Justice (2015),

http://www4.unfccc.int/ndcregistry/PublishedDocuments/India%20First/INDIA%2

0INDC%20TO%20UNFCCC.pdf.

U.N. Framework Convention on Climate Change, Decision/CP.21 art. 4, ¶ 9,

Dec. 12, 2015, https://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf.

Making the NDCs legally binding would have triggered the need for

ratification of the Paris Agreement by the U.S. Senate. See Dan Bodansky The Paris

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PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

The non-binding nature of NDCs has several consequences that

make the Paris Agreement fragile and prone to defections. States cannot

compel other states to submit an ambitious NDC or punish states for falling

short of an NDC. There is nothing in the Agreement, moreover, that requires

a party to justify its NDC in relationship to reaching the treaty’s overall goal

of limiting global warming to well below two degrees Celsius. No provision

requires a party to show, for example, that its pledge, in coordination with

other nations making a similar level of effort, would achieve this temperature

goal. The treaty allows governments to set pledges solely on the basis of

domestic convenience and capability. Seen in this light, as Anne-Marie

Slaughter has noted, the Paris Agreement is mainly a “statement of good

intentions.”

The parties opted for this voluntary approach because a “tougher”

agreement with binding targets and enforceable sanctions would not have

attracted widespread participation, particularly by major emitters including

the United States.

Many proponents of the Agreement contend that it was

the best that could have been achieved in 2015, after years of fruitless

negotiation on legally-binding targets and timetables.

The voluntary

Climate Change Agreement: A New Hope?, 110 AM. J. INT’L L. 288, 294 (2016);

John Vidal, How a Typo Nearly Derailed the Paris Climate Deal, THE GUARDIAN

(Dec. 16, 2015), https://www.theguardian.com/environment/blog/2015/dec/16/how-

a-typo-nearly-derailed-the-paris-climate-deal. Some scholars have argued that even

as adopted, with non-binding NDCs, the Paris Agreement should have been

submitted for Senate ratification because President Obama had no authority to enter

into the Agreement as an Executive Agreement. See Eugene Kontorovich, Exiting

Paris: What the Climate Accord teaches about the Features of Treaties and

Executive Agreements, 51 CASE WESTERN RESERVE J. OF INTL. L. 103, 118 (2019)

(arguing that with this constitutional infirmity, “President Trump did not quit the

Paris Accord because the U.S. was never in it in the first place.”).

See Anne-Marie Slaughter, The Paris Approach to Global Governance,

December 28, 2015, https://www.project-syndicate.org/commentary/paris-

agreement-model-for-global-governance-by-anne-marie-slaughter-2015-12. See

also Peter Christoff, The Promissory Note: Cop21 and the Paris Agreement, 25

ENVTL. POLITICS 765 (2016) (the Agreement is a “promissory note” whose “value

remains unclear.”).

Green, supra note [16], at 4.

See id [29]; Raymond Clemencon, The Two Sides of the Paris Climate

Agreement: Dismal Failure or Historic Breakthrough?, 25 J. OF ENV’T & DEV. 4, 5

(2016).

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10 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

structure was also the natural evolution of negotiations since 2009 that

centered on a voluntary, pledge-and-review approach.

The Agreement’s lack of bindingness has been lauded on the grounds

that states’ GHG reduction pledges are likely to be more ambitious than

commitments states would submit under an alternative, legally-binding

regime with tough sanctions.

As the IPCC has explained, “states may prefer

[that] legally binding agreements . . . embody less ambitious commitments,

and [states] may be willing to accept more ambitious commitments when

they are less legally binding.”

Voluntary pledges can therefore, collectively,

be far more effective at halting global warming in the long run than

mandatory, legally binding commitments of lesser magnitude.

The problem with relying on voluntary pledges, however, is that if

the aggregate emissions reductions expected under the NDCs are insufficient

to keep warming within tolerable levels, there is no stick to force states to

commit to greater reductions. We now have a short window of time to slash

global GHG emissions, but the Paris Agreement offers no mechanism to

force emissions reductions on parties or even to allocate effort among the

parties. It rests on the vicissitudes of voluntary action, with each party

deciding how much effort it is willing to make.

The emissions gap—the shortfall in the sufficiency of the voluntary

pledges—was obvious at the Paris conference. Analysts quickly predicted

that if all the NDCs submitted under the Agreement in 2015-2016 were fully

implemented by 2030 (which is highly unlikely), global temperatures would

increase 2.7 to 3.5 degrees Celsius beyond pre-industrial levels,

Daniel Bodansky, The Paris Agreement: A New Hope, supra note __ at 289-

90 (noting that the “paradigm shift” occurred at the 2009 Copenhagen conference

where the parties abandoned the Kyoto Protocol’s legally binding architecture); Peter

Christoff, The Promissory Note: COP21 and the Paris Climate Agreement, 25 ENV.

POLITICS 765, 767 (2016).

Greater bindingness in international agreements often leads to less ambitious

commitments, as parties are concerned about their own ability to meet their pledges.

See Kal Raustiala, Form and Substance in International Agreements, 99 AM. J. OF

INTL. L. 581, 603 (2005). See also DAVID VICTOR, GLOBAL WARMING GRIDLOCK:

CREATING MORE EFFECTIVE STRATEGIES FOR PROTECTING THE PLANET 74 (2011).

“International Cooperation: Agreements and Instruments” in Climate

Change 2014: Mitigation of Climate Change. Working Group III 27 (2014).

See COP21, UNITED NATIONS

HTTPS://WWW.UN.ORG/SUSTAINABLEDEVELOPMENT/WP-

CONTENT/UPLOADS/2015/10/COP21-FAQS.PDF (explaining that even with full

implementation of NDCs, Earth’s temperature is predicted to increase by 2.7 to 3.5

degrees Celsius depending on the assumptions used to model predictions); Simon

Evans, UN Report: Climate Pledges Fall Short of Cheapest Route to 2C Limit,

CARBON BRIEF (Oct. 30, 2015), https://www.carbonbrief.org/un-report-climate-

pledges-fall-short-of-cheapest-route-to-2c-limit (discussing sources that estimate

that Earth’s temperature will increase by 2.7 to 3.5 degrees Celsius). But see U.N.

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PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

catastrophic level of warming. Negotiators knew that the voluntary pledges

were nowhere near sufficient to achieve the ultimate goal of the treaty:

keeping global warming to “well below” 2 degrees Celsius compared to pre-

industrial temperatures and “pursuing efforts” to limit the temperature

increase to 1.5 degrees Celsius.

The parties took what they could get in 2015, fully aware of this

emissions gap, and hoped the Agreement would spur collective progress over

time.

The long-term success of the Paris Agreement therefore depends on

the optimistic vision of what I call an “upward spiral,” where early-stage

cooperation at Paris will result in parties being willing to make progressively

more ambitious commitments in the future. As parties work toward

reasonably achievable NDCs and continue to build trust and confidence,

countries may be willing to make deep cuts in emissions, secure in the

knowledge that other parties are making similar sacrifices.

This vision of an upward spiral in turn depends on two assumptions:

First, that the so-called “ratchet mechanism” of the Paris Agreement will

operate as intended, and second, that pressure from other parties to aim higher

in the ambition of NDCs, which I call the “peer pressure proposition,” will

be sustained over several decades.

Both of these assumptions are attractive, widely held, and wrong.

A. The Ratchet Mechanism

The ratchet mechanism refers to the provisions of the Paris

Agreement that require parties to submit progressively more “ambitious”

NDCs over time. “Ambitious” in this context means NDCs that commit a

state to progressively deeper GHG emissions cuts or, for many developing

states, NDCs that allow an increase in expected emissions, but at a slower

rate than current projections.

The ratchet mechanism is the only internationally-agreed legal text

that encourages parties to reduce their GHG emissions over a multi-decade

Environment Programme, The Emissions Gap Report 2016, U.N. Doc.

DEW/2061/NA (Nov. 2016),

http://wedocs.unep.org/bitstream/handle/20.500.11822/10016/emission_gap_report

_2016.pdf?sequence=1&isAllowed=y (explaining that even if the all parties’ NDCs

are fully implemented, Earth’s temperature will increase by 3.0 to 3.2 degrees

Celsius by 2100).

Paris Agreement, Art. 2.

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12 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

timespan. It is not spelled out in any single Article of the Agreement. Rather,

the “ratchet” results from a collection of scattered provisions, including the

following:

• Each Party shall “prepare, communicate, and

maintain successive nationally determined

contributions that it intends to achieve.”

• Each Party’s successive NDCs “will represent a

progression beyond the Party’s then current

nationally determined contribution and represent its

highest possible ambition.”

• Each Party shall “regularly provide information on

national inventories and information necessary to

track progress made in implementing and

achieving” its NDC.

• A Party may at any time “adjust” its NDC “with a

view to enhancing its level of ambition.”

• Beginning in 2023 and every five years thereafter,

the parties shall “take stock of the implementation

of this Agreement to assess the collective progress

toward achieving the purpose of the Agreement and

its long-term goals.”

• Parties will then submit successive NDCs “informed

by the outcomes of the global stocktakes.”

These provisions, though skeletal, suggest how the parties expect an

upward spiral to unfold. They create a detailed timeline in which the parties

will submit NDCs, prepare emissions inventories at least every two years,

take stock every five years of progress under the Agreement (2023, 2028,

Paris Agreement, Art. 4.

Id.

Paris Agreement, Art. 13.

Id.

Paris Agreement, Art. 23.

Paris Agreement, Art. 4.

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PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

etc.), and then submit new pledges that “represent a progression beyond the

party’s then current NDC” in 2025, 2030 and so on.

Some scholars believe that parties will follow the ratchet mechanism

quite literally, even if domestic circumstances are unfavorable. Christina

Voigt, for example, has argued that even if a party were in a “financial,

political or economic crisis,” there would be no grounds for “a decrease in

what can be considered its ‘highest possible ambition’ compared to the level

contained in the previous NDC.”

According to Voigt, each submission of

an NDC sets a “‘floor”’ for the next NDC.

Voigt suggests that the Paris Agreement somehow locks in an

upward spiral of progressively more ambitious commitments. But this

optimism is misplaced. The text of the ratchet is not self-executing. Given

the lack of penalties for failing to achieve NDCs, parties still face strong

incentives to defect or free-ride under the Agreement, to pledge only minimal

action, or to appear to take action while actually imposing few costs on their

domestic interest groups. Many states—especially those in “financial,

political, or economic crisis”—will prioritize the needs of their domestic

constituencies over their voluntary, non-binding Paris Agreement pledges.

In short, the existence of the ratchet mechanism is a necessary but

not sufficient condition for a consistent, upward trajectory of NDCs. Parties

must somehow be incentivized to stick with it.

B. The Peer Pressure Proposition

According to many scholars, peer pressure will be the glue that holds

the Agreement together.

Under the pledge and review system, parties will

feel pressure from other parties to submit progressively more ambitious

Id. See also Daniel Bodansky, The Paris Agreement: A New Hopem supra

note __ at 307-07 (detailing the steps in this timeline).

Christina Voigt, On the Paris Agreement’s Imminent Entry Into Force, EJIL

TALK, (Oct. 12, 2016), https://www.ejiltalk.org/on-the-paris-agreements-imminent-

entering-into-force-what-are-the-consequences-of-the-paris-agreements-entering-

into-force-part-ii/.

Id. [43]

See, e.g., Peter Christoff, The Promissory Note: COP 21 and the Paris

Climate Agreement, ENVTL. POLITICS 765, 778 (2016); Robert Falkner, supra note

[11], at 1121-22; Sourgens, Climate Commons Law: The Transformative Force of

the Paris Agreement, NYU J OF INTL L. & POL. 885, 900 (“[t]he Paris Agreement

sought to engender global action by mutual reliance.”).

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14 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

NDCs (as well as pressure to achieve them). Additionally, the ratchet

mechanism could be sustained if parties fear reputational costs if they engage

in non-cooperative behavior, such as failing to achieve their own NDCs. If

parties perceive that other parties are making progress toward their respective

NDCs at each review conference, they will be more willing to undertake

progressively deeper cuts themselves.

In this view, the five-year

“stocktake” review conferences—a collective “show and tell” on the

international stage

—will be the key fora for exercising peer pressure under

the Agreement.

I refer to these arguments about disclosure, reciprocity, and

reputation as the “peer pressure proposition.” The peer pressure proposition

holds that positive peer pressure or perceived reputational costs will

encourage parties to make and achieve progressively more ambitious

commitments under the Agreement.

While the peer pressure proposition is usually framed in terms of

peer pressure from other states, some scholars also include pressure from

NGOs as part of the constellation of reputational pressures.

It is appropriate

to consider the role of NGOs because they have been active in tracking

progress, compiling data, and calling out flawed policies. Even when both

governmental and non-governmental entities are considered, however, the

question remains the same: will informal pressure be sufficient to keep

parties moving along the ratchet mechanism?

There is reason to question whether the peer pressure proposition can

consistently work to support the Paris Agreement over several decades,

especially through global political and economic upheavals. If it turns out

that major emitting nations are, in fact, unmotivated by reputational concerns,

then the prospects for voluntary cooperation are dimmer. We may be looking,

in the years ahead, at defection, free-riding, and slow-walking, rather than

ambition and reciprocity. Since there is no formal sanction for failing to

See Aldy et al., Economic Tools to Promote Transparency and Comparability

in the Paris Agreement, 6 NATURE CLIMATE CHANGE 1000 (2016) (“The long-term

success of the Paris Agreement is likely to depend on assessments of whether

comparable countries undertake comparable mitigation efforts.”). See also Jennifer

Jacquet & Dale Jameison, Soft but Significant Power in the Paris Agreement, 6

NATURE CLIMATE CHANGE 646 (2016).

Louisa Casson, Vive le Ratchet!, E3G, Dec. 7, 2015,

https://www.e3g.org/library/vive-le-ratchet.

Sylvia I. Karlsson-Vinkhuyzen et al, Entry into Force and Then? The Paris

Agreement and State Accountability, 18 CLIMATE POLICY 593 (2018) (describing

several “pathways” for holding states accountable to Paris Agreement commitments,

including pressure from other states, pressure from domestic institutions, and

pressure from public and community groups such as NGOs); Sylvia Karlsson-

Vinkhuyzen & Harro van Asselt, Strengthening Accountability Under the 2015

Climate Change Agreement, CLIMATE STRATEGIES (Nov. 2, 2015).

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PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

achieve NDCs, Breakdown and Breakup become plausible scenarios if these

norm-based reputational pressures similarly prove to be weak in the next

decade. Therefore, the validity of the peer pressure proposition needs to be

critically scrutinized, rather than merely assumed.

Below, I challenge some of key assumptions of the peer pressure

proposition, arguing that skepticism is warranted for three main reasons.

1. Domestic concerns likely outweigh perceived international

reputational concerns.

One reason for skepticism is that the peer pressure proposition

excessively emphasizes the role of international reputation. Reputation surely

matters in international law. As Ian Johnstone has argued, “states care about

collective judgment of their conduct because they have an interest in

reciprocal compliance by and future cooperation with others.”

International reputation is but one consideration for states, however.

A more nuanced account would acknowledge that states make a cost-benefit

calculus on the stringency of their international climate commitments, and

their calculus prioritizes domestic concerns. These domestic concerns

include the immediate pressures of electoral politics, the expected impact of

deep emissions cuts on domestic industries, and prioritization of national

economic growth over global emissions reductions.

In each party’s cost-benefit calculus, powerful domestic economic

interests will undoubtedly weigh as much or more than concerns about

international reputation, particularly because any reputational “hit” under the

Paris Agreement is tied to a non-binding climate pledge. NDCs are legally

See Meinhard Doelle, The Paris Agreement: Historic Breakthrough or High

Stakes Experiment?, CLIMATE L. 14, (“[T]here is every reason to expect that each

five year stocktaking and review cycle will pressure Parties to increase their ambition

toward a collective effort sufficient to meet the long-term goals set out in the

Agreement”). See also Wolfgang Obergassel et al., Phoenix from the Ashes — An

Analysis of the Paris Agreement to the United Nations Framework Convention on

Climate Change, WUPPERTAL INST. FOR CLIMATE, ENV’T & ENERGY 45 (2016),

https://wupperinst.org/fa/redaktion/downloads/publications/Paris_Results.pdf.

(noting that the stocktakes will “force countries to regularly justify the ambition level

of their contributions.”).

Ian Johnstone, “The Power of Interpretive Communities,” in POWER IN

GLOBAL GOVERNANCE 187 (Michael Barnett & Raymond Duvall eds., 2005).

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16 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

unenforceable pledges, so the reputation costs of failing to achieve them are

diluted.

Even if many governments were to perceive that net benefits

outweigh net costs in committing to ambitious NDCs, the distribution of

costs on powerful domestic actors might act as a drag on national ambition.

For example, if veto players in the oil, coal, forest products or palm oil

industries retain their political influence with the governments of major

emitters (for example, Russia, Saudi Arabia, South Africa, Indonesia), which

seems likely, these governments might perceive international pressure to

submit more ambitious NDCs, combined with intense domestic pressure to

do less. As a consequence, these important states might continue to submit

weak NDCs throughout the 2020s.

The cost of making deep emissions cuts will be a driving factor as

states consider second and third round NDCs in the 2020s. For some

countries, cost estimates are in the trillions of dollars for staying on an

emissions trajectory through mid-century that is consistent with the Paris

Agreement’s two-degree temperature goal.

To be sure, there are also

massive, incalculable benefits to preventing runaway warming beyond two

degrees,

but for any government, it will be the direct near-term costs that

will receive the most attention. Given the costs of emissions abatement, there

is nothing to stop a country from submitting an unambitious NDC—one that

it can easily meet—and saying to the world: “this is all we can do.”

An upward spiral of increasing ambition is still possible, of course,

if backsliding occurs among smaller players that are negligible contributors

to overall global emissions. The Agreement will rise or fall on whether the

twenty or so major emitters commit to, and achieve, long-term emissions

Parties may be particularly prone to ignore these reputational costs if the

NDC itself was submitted by a prior president, prime minister, or regime. It is also

likely that prolonged recessions would diminish a government’s enthusiasm to

implement non-binding promises that were made during periods of strong economic

growth.

See, e.g., Geoffrey Heal, Reflections: What Would it Take to Reduce U.S.

Greenhouse Gas Emissions 80 Percent by 2050?” 11 REVIEW OF ENVIRONMENT

ECON AND POLICY 319 (2017) (examining both the expected capital costs to deploy

renewable energy and the lower operating costs from reduced fossil fuel

consumption and calculating net costs of emissions reductions through 2050 between

$1.28-3.97 trillion).

Moody’s analytics estimated, for example, that two degrees of warming

would reduce U.S. GDP by about 1.2 percent annually by 2100, and that the total

cumulative costs to the world of two degrees of warming would be $69 trillion by

2100. MOODY’S ANALYTICS, THE ECONOMIC IMPLICATIONS OF CLIMATE CHANGE

(June 2019).

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PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

reductions.

But even the major emitters may not be motivated by concerns

about international reputation, particularly after President Trump’s

withdrawal announcement. The ratchet mechanism could easily stall.

The best argument that the peer pressure proposition will sustain the

Paris Agreement is that norms of reciprocity have already supported

concerted action in the past, at the Paris conference itself.

After all, no

country was obligated to submit a GHG reduction commitment at Paris. Yet

over 180 nations did participate and submit pledges, bringing together an

historically unified coalition including the United States and all the other

major GHG emitters.

This initial, baseline level of cooperation, many

analysts hope, can eventually be scaled up in a process of mutual reliance,

supported by rigorous reporting and verification measures.

There is reason to doubt, however, that the hotter future will look like

the cooperative past. While states did make voluntary pledges at Paris, their

willingness to do so actually tells us very little about their incentives to make

progressively more ambitious pledges through the 2020s, when the needed

GHG emissions cuts will become steeper and costlier.

At Paris, it was relatively costless to submit the initial round of non-

binding commitments. Indeed, for many parties the submission of an NDC

brought large benefits because it led to international acceptance of the pledge

as a valid opening offer. In the 2020s, when the trajectory of needed

reductions becomes steeper, each party will face a more difficult calculus

regarding the stringency of its emissions cuts. Domestic cost considerations

will weigh heavily in these calculations.

See Oran R. Young, supra note [12], at 124 (“Certainly, a coalition

encompassing China, the European Union, India, and the United States could put the

international community on a path toward solving the problem of climate change.”).

See, e.g., Sourgens, supra note __ at 913 (arguing that parties were willing to

make commitments at Paris because they were all in effect “second movers,” in the

position of seeing the pledges of others before becoming irrevocably committed to

their own pledge).

See NDC Registry, U.N. FRAMEWORK CONVENTION ON CLIMATE CHANGE,

https://www4.unfccc.int/sites/NDCStaging/pages/All.aspx.

Christoff, The Promissory Note, supra note __ at (explaining that the

Agreement must “ratchet up” collective climate action and that tougher mitigation

measures must be “iteratively brought into being.”); Annalisa Savaresi, The Paris

Agreement: A New Beginning? 34 J OF ENERGY AND NAT RES L. 16 (2016) (“the

global stock-take ensures the means to ratchet up the level of ambition over time”).

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18 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

2. There is a weak record of “naming and shaming” climate

change laggards.

A second reason to be skeptical of the peer pressure proposition is

that there is a weak historical track record of achieving gains in climate policy

by “naming and shaming” states perceived to be climate change laggards.

Canada provides the best example of the challenge of shaming a

country into action. Canada withdrew from the Kyoto Protocol in 2011

because it intended to fully exploit its carbon-intensive tar sands in Alberta,

and, at the time of its withdrawal, its annual GHG emissions far exceeded its

legally-binding commitments under the Protocol.

Yet Canada suffered few

reprisals or consequences for its decision to withdraw from Kyoto. Just a few

years later, Canada was welcomed back into the fold in the Paris negotiations,

just as the United States would undoubtedly be welcomed back into the Paris

framework should a future U.S. President seek to rejoin.

If “naming and shaming” strategies failed to compel adherence to the

Kyoto Protocol, which had legally binding targets and timetables, there is

little reason to expect that these strategies will now become effective under

the Paris Agreement. Because the NDCs are non-binding, any party who fails

to achieve its pledge can respond that the NDC was simply aspirational.

Achieving it was never a legal obligation under the treaty.

To put it simply: international acceptance in 2015 of an Agreement

that is grounded in voluntary, non-binding NDCs undercuts the power of

“naming and shaming” strategies over the life of the Agreement. The

international community has already accepted a climate change regime with

aspirational goals, not explicit exchanges of promises. The peer pressure

proposition rests on the dubious assumption that states will be sensitive to

reputational damage if they fail to achieve these goals—goals that all parties

conceded, from the outset, were non-binding.

Naming and shaming strategies can work when deployed against a

handful of nations who have acted odiously, far outside the bounds of

international norms. Human rights violations are the prime example. Indeed,

most of the scholarly research on the impact of naming and shaming

strategies has been conducted in this area.

Most governments are sensitive

Richard Black, Canada to Withdraw from Kyoto Protocol, BRIT.

BROADCASTING CORP. NEWS (Dec. 13, 2011), https://www.bbc.com/news/world-us-

canada-16151310.

As Christina Voigt has observed, “compliance in its legal sense is only

possible with provisions that set legally binding obligations for parties.” Christina

Voigt, The Compliance and Implementation Mechanism of the Paris Agreement, 25

REV. OF EUROPEAN COMMUNITY & INT’L ENVTL. L. 161, 166 (2016).

See, e.g., Franklin, J. Shame on You: The Impact of Human Rights Criticism

on Political Repression in Latin America’, 52 INTERNATIONAL STUDIES QUARTERLY

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PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

to their human rights records. Moreover, the norms of proper conduct are

long-established, and breaches are considered serious violations of

international law. Flouting human rights norms can lead to international

outrage, boycotts, and formal and informal pressure on the errant state.

Yet peer pressure—shaming—is likely to be far less effective in the

context of climate change.

When it comes to fossil fuel consumption, no

one has clean hands. There is, as of yet, no clear demarcation line between

an acceptable level of consumption of fossil fuels and some unacceptable,

reproachable degree of consumption that would trigger international

condemnation. The Paris Agreement does not establish any such red line.

187–211 (2008); Hafner-Burton, E. M. Sticks and Stones: Naming and Shaming

the Human Rights Enforcement Problem, 62 INTERNATIONAL ORGANIZATION 689–

716 (2008).

Int’l Inst. & Global Governance Program, The Global Human Rights

Regime, COUNCIL ON FOREIGN RELATIONS (May 11, 2012)

https://www.cfr.org/report/global-human-rights-regime; Annie Walls, Data

Mining, Lessons from the Kimberley Process for the United Nations Developemnt of

Human Rights Norms, 4 NORTHWESTERN JOURNAL OF INTERNATIONAL HUMAN

RIGHTS 388 (2005) (describing threat of NGO boycotts in spurring adherence to the

voluntary Kimberly Process to end human rights abuses in the diamond industry);

Barbara A. Frey, The Legal and Ethical Responsibilities of Transnational

Corporations in the Protection of International Human Rights, 6 MINN J. OF GLOBAL

TRADE 153, 169 (describing corporate codes of conduct and actions by corporations

to isolate regimes that abuse human rights).

In one of the few empirical studies of naming and shaming strategies in the

environmental context, Amanda Murdie concluded that naming and shaming

strategies are less effective compared to similar strategies in human rights policy.

Although her data showed that criticism by environmental groups can lead to

reputational damage for states, Murdie concluded the “magnitude of this effect

depends on the state’s domestic characteristics, ranging from regime type to

bureaucratic institutions and the severity of the problem at hand.” Amanda Murdie,

Why Pick On Us? Environmental INGOs and State Shaming as a Strategic

Substitute, 63 POLITICAL STUDIES 353 (2015). She further concluded that domestic

considerations will determine if the state responds to the naming and shaming

strategies of environmental groups, concluding that “the cost of abating pollution

determines how readily the state responds to naming and shaming.” Id.

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20 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

3. The peer pressure proposition assumes that emissions cuts

will be easier in the future.

The peer pressure proposition is not credible for a third reason: One

of its core premises, that progress will become easier to achieve over time, is

far from a stable, bankable conclusion.

Specifically, many scholars and policymakers have argued that

parties will be willing to proceed along the ratchet mechanism with

progressively deeper emissions cuts because the commitments themselves

will be easier to achieve—economically, technologically, and politically—

over time.

For example, new technologies or falling prices for renewable

energy could allow nations to promise more in the 2020s than they promised

in 2015, facilitating a greater degree of trust and reciprocity among the

parties. Following this optimistic narrative, the Paris Agreement, which

began as a “shallow” treaty in 2015 with insufficient NDCs, could over time

evolve into a “deep” treaty in which parties commit to substantial changes in

behavior and implement them domestically.

Brian Deese, President Obama’s environmental advisor, articulated

this assumption in a 2017 Foreign Affairs article about the Paris Agreement’s

ability to outlast President Trump: “Because the economic forces that gave

rise to the agreement have continued to accelerate,” Deese argued, “more and

more countries now see the benefits of leading in the fast-growing clean

energy industries. So they will likely raise their targets to reap the rewards of

staying ahead of the pack.”

The Obama Administration’s official NDC submittal also repeated

the assumption that future progress will be easier to achieve, contending that

Joseph Allan MacDougald, Paris, Policy, and the Grid: History and Context,

33 CONN. J. INT’L L. 409, 421 (2018); Brian Deese, Paris Isn’t Burning, FOREIGN

AFFAIRS (July/Aug. 2017), https://www.foreignaffairs.com/articles/2017-05-

22/paris-isnt-burning.

See Keohane & Victor, Cooperation and Discord, supra note [19] at 5 (noting

that “shallow coordination can create vital conditions for deeper cooperation, such

as reliable systems for emissions accounting and reporting.”).

Brian Deese, Paris Isn’t Burning, FOREIGN AFFAIRS (July/Aug 2017),

https://www.foreignaffairs.com/articles/2017-05-22/paris-isnt-burning. Similarly,

lead U.S. negotiator Todd Stern expressed hope in 2015 that parties could

progressively ramp up their NDCs in a virtuous circle of cooperation. He noted, for

example, that in 2020, “we think the target [the United States] could put forward for

2030” would be “measurably higher than a 2030 target we could put forward now.”

Todd D. Stern, Special Envoy for Climate Change, Dep’t of State, Address at Yale

University: Seizing the Opportunity for Progress on Climate (Oct. 14, 2014).

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PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

“political will to take ambitious action generally increases over time.”

The

assumption is widely shared among scholars. According to two British

scholars, it is a “reasonable assumption” that countries’ domestic constraints

on raising the ambition of NDCs will gradually fall during the 2020s.

As we enter the 2020s, however, this “reasonable assumption” looks

like wishful thinking. In recent years, populist and nationalist movements

opposed to climate action have risen to power in key emitting states. The

President of the United States is a climate change denier committed to

reviving the coal industry and reversing the EPA regulations upon which

President Obama’s 2015 NDC was based.

Given these developments, the

Obama Administration’s prophecy that “political will to take ambitious

action generally increases over time” was overly optimistic.

Economic and technological changes do not automatically favor

greater commitments by Paris Agreement parties. They may, or they may not.

It depends on politics, the speed of technology uptake, and in the case of

developing countries, whether outside financing is available to speed the rate

of adoption.

Consider some facts on the ground. It is true the price of renewable

energy has fallen dramatically, facilitating rapid deployment of carbon-free

energy sources into the 2020s.

But it is also true that 1200 new coal-fired

power plants are under construction worldwide.

In fact, global consumption

NDC Registry, U.N. FRAMEWORK CONVENTION ON CLIMATE CHANGE,

https://www4.unfccc.int/sites/NDCStaging/pages/All.aspx.

FERGUS GREEN, THIS TIME IS DIFFERENT, supra note [16] at 25.

See Sourgens, supra note __ at 930-31 (noting the centrality of the EPA’s

Clean Power Plan to achievement of the U.S. NDC). See also How the Trump

Administration is Rolling Back Plans for Clean Power,

https://www.theguardian.com/environment/2018/aug/21/epa-clean-power-plan-

rollback-affordable-energy-rule

Supra note [66]

Megan Mahajan, Plunging Prices Mean Building New Renewable Energy is

Cheaper Than Running Existing Coal, FORBES (Dec. 3, 2018),

https://www.forbes.com/sites/energyinnovation/2018/12/03/plunging-prices-mean-

building-new-renewable-energy-is-cheaper-than-running-existing-

coal/#2edc017231f3; Jeremy Berke, One Simple Chart Shows Why an Energy

Revolution is Coming — And Who is Likely to Come Out on Top, BUS. INSIDER (May

8, 2018), https://www.businessinsider.com/solar-power-cost-decrease-2018-5.

Somini Sengupta, The World Needs to Quit Coal, So Why It is So Hard? N.Y.

TIMES, Nov 24, 2018.

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22 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

of coal increased between 2015 and 2018.

This continued build-out of fossil

fuel infrastructure will, in the 2020s and beyond, sustain powerful incumbent

industries that will oppose climate action and lobby their governments

against it. This could result in a drag on the ambition of climate commitments,

particularly in coal-dependent countries such as India, China, and South

Africa.

Even if low-carbon technology were deployed rapidly in sectors such

as electric utilities, buildings, and transportation, the rate of technological

progress will not likely be fast enough for the world to stay on an emissions

path consistent with the Agreement’s two-degree goal. The problem is that

growth in global GDP and global population will likely swamp any reduction

in carbon intensity per unit of GDP that stems from technology

improvements.

The result will be an overall rise in global GHG emissions

for at least the next decade, even as low-carbon technologies proliferate.

Indeed, the International Energy Agency predicts that global energy demand

will increase by 25 percent by 2040, that demand will principally be met by

fossil fuels, and that global GHG emissions will also rise through 2040.

Deforestation, a major source of emissions, is ultimately driven by population

growth and increasing affluence. That problem will become more difficult to

solve as time passes.

Id. [71]

In a 2018 working paper, two economists modeled what level of per capita

GDP growth through 2050 would be consistent with having a reasonable chance (66

percent) of staying within the two-degree window, assuming dramatic,

unprecedented improvements in the carbon intensity of world economies. E.

Schroder and S Storm, Economic Growth and Carbon Emissions: The Road to

Hothouse Earth is Paved with Good Intentions, Institute for New Economic Thinking

Working Paper (2018). Their research question, in other words, was if nations could

somehow “decouple” their growth from GHG emissions, finding technological

solutions to improve standards of living with far less fossil fuel consumption, how

much could per capita income increase annually through 2050 and still have a

reasonable chance of avoiding warming beyond 2 degrees Celsius? Their answer: a

0.45 percent annual growth rate in GDP per capita, about one-fifth of historic growth

rates. The finding shows we are highly carbon-constrained. The paper explains that

annual growth in per capita GDP must somehow slow to near-zero to avoid

catastrophic warming. Id.

IEA World Energy Outlook, Executive Summary,

https://webstore.iea.org/download/summary/190?fileName=English-WEO-2018-

ES.pdf (figures are for a scenario that includes countries’ announced new energy and

climate policies).

See Brown et al., Achievement of Paris Climate Goals Unlikely Due to Time

Lag in the Land System, 9 NATURE CLIMATE CHANGE 203 (March 2019) (noting that

between 2015 and 2016, deforestation increased by 29 percent in Brazil and 44

percent in Columbia and explaining that rates of primary forest loss in the Congo and

Indonesia are now 1.5 and 3 times, respectively, the rate of Brazil).

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PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

In sum, the assumption that it will become easier over time for Paris

Agreement parties to pledge aggressive cuts is central to the expected

operation of the ratchet mechanism. It is central to the peer pressure

proposition. It will likely hold for some countries and for some technologies.

But the assumption does not hold as a bankable general proposition for the

world.

C. Starting Small and Building Ambition Over Time: The

Historical Record

In pointing out the many ways in which the assumptions behind the

ratchet mechanism and the peer pressure proposition are problematic, I do

not mean to suggest that the Paris Agreement will inevitably collapse, but

simply that it is fragile. In Part II, I detail some of the stressors on the

Agreement that have emerged since it was signed.

Before turning to Part II, however, it is important to examine some

historical parallels to the Paris Agreement. There are many examples of

Multilateral Environmental Agreements (MEAs) that start as “modest

arrangements” that make few initial demands on the parties and then

strengthen over time as trust among the parties builds and as science

develops.

These MEAs had an outsized influence on the Paris negotiators,

shaping their perceptions and expectations of how the Agreement would

strengthen over time. Scholars have regularly pointed to these precedents as

reason for optimism that Paris can evolve into a “deep” and effective treaty

over time.

The MEAs governing ozone depletion provide a notable example.

The ozone treaty regime began with the 1985 Vienna Convention for the

Protection of the Ozone Layer,

a framework convention that demanded no

cuts in ozone depleting substances.

It simply established reporting

requirements and facilitated further research.

The Vienna Convention was

followed two years later by the Montreal Protocol, which did contain binding

Oran Young, supra note [12], at 126.

Id.

Vienna Convention for the Protection of the Ozone Layer, Mar. 22, 1985, 26

I.L.M. 1516.

Id. at Arts. 3, 4, 5.

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24 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

reductions in each nation’s consumption of ozone depleting substances.

The

Montreal Protocol parties then negotiated a series of amendments in the

1990s that tightened phase-out deadlines and added new substances to the list

of those controlled.

Governments never backslided. An upward ratchet mechanism

worked in the ozone regime because governments calculated that the cost of

inaction was severe as new science highlighted the health effects of ozone

layer damage.

Only a handful of developed nations were major producers

of ozone depleting substances, reducing the level of complexity in

negotiations.

Above all, the ozone regime strengthened over time because

major manufacturers like DuPont were able to develop substitute chemicals

that achieved the same functions as the ozone depleting substances.

These

substitutes made it easier for parties to commit to rapid phase-outs of ozone

depleting substances.

The 2001 Stockholm Convention on Persistent Organic Pollutants

provides another example of how MEAs can be strengthened over time. That

treaty banned production of an initial list of “dirty dozen” toxic chemicals

and also contained a mechanism for parties to add to the initial list over

time.

Because most of the Stockholm parties had already banned the “dirty

Montreal Protocol on Substances that Deplete the Ozone Layer, opened for

signature Sept. 16, 1987, 26 I.L.M. 1516.

Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16,

1987, S. Treaty No. 100-10, 1522 U.N.T.S. 29; INTERNATIONAL TREATIES AND

COOPERATION ABOUT THE PROTECTION OF THE STRATOSPHERIC OZONE LAYER,

UNITED STATES ENVTL. PROT. AGENCY, https://www.epa.gov/ozone-layer-

protection/international-treaties-and-cooperation-about-protection-stratospheric-

ozone; London Amendments to the Montreal Protocol on Substances that Deplete

the Ozone Layer, June 1990, 30 ILM 537 (1991).

HUNTER, SALZMAN, & ZAELKE, INTERNATIONAL ENVIRONMENTAL LAW AND

POLICY 604 (4TH ED. 2011); F. Sherwood Rowland, Atmospheric Changes Caused

by Human Activities: From Science to Regulation, 27 ECOLOGY L.Q. 1261, 1274

(2001); Peter M. Morrisette, The Evolution of Policy Responses to Stratospheric

Ozone Depletion, 29 NAT. RESOURCES J. 793, 794 (1989).

Phasing Out CFCs: The Vienna Convention and its Montreal Protocol,

U.N. FRAMEWORK CONVENTION ON CLIMATE CHANGE (May 1, 1993),

https://unfccc.int/resource/ccsites/senegal/fact/fs224.htm; Ian Rae & Annie Gabriel,

Saving the Ozone Layer: Why the Montreal Protocol Worked, CONVERSATION

(Sept. 9, 2012), http://theconversation.com/saving-the-ozone-layer-why-the-

montreal-protocol-worked-9249; HUNTER, SALZMAN, INTL ENV L. AND POLICY,

supra note 82 at 546 (noting that production was concentrated in the United States

and Europe and was dominated by just a few multinational companies such as

Dupont and ICI).

HUNTER, SALZMAN, & ZAELKE, supra note 83, at 582.

Stockholm Convention on Persistent Organic Pollutants, opened for

signature May 22, 2001, 40 I.L.M. 532.

Electronic copy available at: https://ssrn.com/abstract=3463892

PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

dozen” chemicals under domestic law, the initial treaty commitments were

relatively easy for parties to undertake.

The treaty simply codified

internationally what the parties had already accomplished domestically.

Eight years after adopting the initial text, the parties took the next step in

2009 by expanding the treaty to cover sixteen additional substances beyond

the “dirty dozen.”

The success of the ozone regime and the Stockholm Convention

shows the possibility of deep behavioral change by states after an initial

period of cooperation. In the end, however, these MEAs offer only limited

guidance for the Paris Agreement. The treaties were issue-specific and

focused on a narrower set of problems than the Paris Agreement. They

involved fewer players, and substitutes were available for the problematic

substances regulated under the treaties.

Climate change is a far more fiendish problem. There are billions of

sources of greenhouse gas emissions.

Every nation on earth uses the fuels

that lead to climate disruption, and the existing infrastructure for fossil fuels

is locked in for decades. Although there are carbon-free energy substitutes,

the transition cannot be made easily.

There are counterexamples in international law, moreover, that

should give us pause. These examples suggest that if parties are not on track

to fulfill even their initial commitments under the Paris Agreement, then

there may be little momentum to strengthen those commitments over time.

In the past half century, dozens of MEAs were launched with unambitious,

largely voluntary commitments by parties, and those MEAs remain just as

“shallow,” unambitious, and ineffective today.

Andrew J. Yoder, Lessons from Stockholm: Evaluating the Global

Convention on Persistent Organic Pollutants, 10 IND. J. GLOBAL LEGAL STUD. 113

(2003).

Stockholm Convention on Persistent Organic Pollutants, opened for

signature May 4, 2009, 40 I.L.M. 532.

Even looking at just one small fraction of the problem, passenger vehicles,

there are over a billion sources of emissions on the planet. John Voelcker, 1.2 Billion

Vehicles on World’s Roads Now, 2 Billion by 2035: Report, GREEN CAR REPORTS

(July 29, 2014) https://www.greencarreports.com/news/1093560_1-2-billion-

vehicles-on-worlds-roads-now-2-billion-by-2035-report.

Alice Kaswan, Energy, Governance, and Market Mechanisms, 72 U. MIAMI

L. REV. 476 (2018); Emily Hammond & Jim Rossi, Stranded Costs and Grid

Decarbonization, 82 BROOK. L. REV. 645 (2017).

Electronic copy available at: https://ssrn.com/abstract=3463892

26 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

One such example is the 1971 Ramsar Convention on Conservation

of Wetlands.

Relying on non-binding, voluntary commitments, the Ramsar

Convention involved minimal obligations and exhorted parties to take a

national wetlands inventory and report results to the Secretariat.

The

principal obligation in the Convention was that each party was required to

designate a wetland within its borders deemed worthy of international

recognition and nominate that wetland to an international list.

The treaty

itself did not require any party to conserve or expand any wetlands within its

territory, including the wetland(s) that it nominated for the international list.

Over fifty years, compliance with the Ramsar Convention has been

high, but the treaty has been ineffective at conserving wetlands. Most parties

followed the treaty’s requirements to the minimal possible extent: they

designated a single wetland for international listing.

The treaty never

expanded beyond its original dictates, and the impact of the Ramsar

Convention on national policies on wetland protection has been negligible.

In the climate change regime, the 1997 Kyoto Protocol

is the most

relevant counterexample that serves as a cautionary precedent for the Paris

Agreement. Like the Paris Agreement, the Kyoto Protocol had near-universal

ratification.

It contained a form of ratchet mechanism (though that term was

not used then) because the parties envisioned a series of “commitment

periods” extending over decades, with the first commitment period ending in

2012. The 43 developed country parties, listed in Annex B of the Protocol,

were legally required to achieve their GHG reduction targets by the end of

the first commitment period, with an expectation that they would then

Ramsar Convention on Conservation of Wetlands, Feb. 2, 1971, 996

U.N.T.S. 14583.

Id. Art. 6(2)(e).

Id. Art. 2.

Kim Diana Connolly, Multipolar Governance Across Environmental Treaty

Regimes, 107 AM. SOC’Y INT’L L. PROC. 440, 442 (2014).

Ilse R. Geijzendorffer et al., A More Effective Ramsar Convention for the

Conservation of Mediterranean Wetlands, FRONTIERS ECOLOGY & EVOLUTION

(2019); Nick C. Davidson, How Much Wetland Has the World Lost? Long-Term and

Recent Trends in Global Wetland Area, 65 MARINE & FRESHWATER RESEARCH 934

(2014); M.J.R. Dixon et al., Tracking Global Change in Ecosystem Area: The

Wetland Extent Trends Index, 193 BIOLOGICAL CONSERVATION 27 (2016); C. M.

Finlayson et al., The Second Warning to Humanity — Providing a Context for

Wetland Management and Policy, 39 WETLANDS 1 (2019).

Kyoto Protocol to the United Nations Framework Convention on Climate

Change, Dec. 11, 1997, 2303 U.N.T.S. 30822.

The Protocol has been ratified by 192 parties. See

https://unfccc.int/process/the-kyoto-protocol/status-of-ratification

Electronic copy available at: https://ssrn.com/abstract=3463892

PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

negotiate progressively deeper GHG reductions for each subsequent

commitment period.

This anticipated upward spiral never occurred. Some developed

countries, such as Japan, Australia, and New Zealand, never achieved their

Kyoto target by the end of the first commitment period.

Canada withdrew

from the treaty in 2011.

100

The United States never ratified it.

101

Today the

Kyoto Protocol is still in force, but it has collapsed into irrelevancy.

102

One reason for the collapse of Kyoto is that geopolitics changed

dramatically between 1997, when the treaty was adopted, and 2009, when the

parties began to negotiate the terms of a second commitment period. In that

period of just over a decade, annual Chinese GHG emissions tripled, the U.S.

election in 2000 tipped to George Bush rather than Al Gore, the Bush

Administration announced it would never join the treaty (putting the United

States in the position of free-riding on international efforts), and the world

See Sheila Olmstead and Robert Stavins, A Meaningful Second Commitment

Period for the Kyoto Protocol, Economists Voice, May 2007 (outlining changes to

the Kyoto Protocol for the second commitment period to attract widespread

participation); European Commission Press Release MEMO/13/956, The

Commission, Questions & Answers on EU Ratification of the Second Commitment

Period of the Kyoto Protocol (Nov. 6, 2013).

Clark, Has the Kyoto Protocol Made Any Difference to Carbon Emissions?,

GUARDIAN U.K. (Nov. 26, 2012),

https://www.theguardian.com/environment/blog/2012/nov/26/kyoto-protocol-

carbon-emissions (comparing national GHG reduction pledges at Kyoto to results

achieved by 2010).

100

Ian Austen, Canada Announces Exit From Kyoto Climate Treaty, N.Y.

TIMES (Dec. 12, 2011), https://www.nytimes.com/2011/12/13/science/earth/canada-

leaving-kyoto-protocol-on-climate-change.html.

101

David Malakoff & Erin Marie Williams, Q & A: An Examination of the

Kyoto Protocol, NAT’L PUB. RADIO (June 6, 2007),

https://www.npr.org/templates/story/story.php?storyId=5042766.

102

The 2012 Doha Amendment established a second commitment period

running from 2012-2020. It called for an average of 18 percent reduction in emissions

below 1990 levels, compared to an average of 5 percent reduction below 1990 levels

in the Kyoto Protocol’s first commitment period. Several large emitters, including

Russia, Japan, and Canada, announced that they would not ratify the Doha

Amendment, and the Doha Amendment has not entered into force. Laurence Boisson

de Chazournes, The Climate Change Regime—Between a Rock and a Hard Place?,

25 FORDHAM ENVTL. L. REV. 625, 632 (May 2014).

Electronic copy available at: https://ssrn.com/abstract=3463892

28 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

suffered under a major global financial crisis.

103

In that decade, it also became

clear that future growth in GHG emissions would come mainly from

developing countries (especially China and India), which were unconstrained

by the Kyoto Protocol.

104

As a result of these tensions, the Kyoto Protocol

descended into Breakdown within just a few years of its 2005 entry into

force.

105

The Kyoto Protocol provides a cautionary tale. It demonstrates the

substantial challenges of holding a treaty regime together to promote GHG

reductions over multi-decade timespans.

To be sure, there are fundamental differences between Paris and

Kyoto. Paris is in many ways the anti-Kyoto. It was negotiated with voluntary

pledges to avoid the deadlocks that plagued Kyoto and to attract the

participation of the United States. It implements a “bottom-up” structure of

self-defined pledges rather than a “top-down” structure of mandatory targets

and timetables.

106

Because Paris rests so heavily on voluntary action, however, it is

important to ask whether the assumptions of the ratchet mechanism and the

peer pressure proposition are likely to hold through the next decade. Has

geopolitics shifted since 2015 in a way that will undermine the Paris

Agreement, just as geopolitics shifted after the adoption of the Kyoto

Protocol in 1997? Will the cooperative assumptions of the Paris Agreement

hold when climate scientists are urging 5 to 8 percent reductions in global

GHG emissions every year to avoid warming beyond two degrees Celsius?

And what are the prospects for the Paris Agreement if it becomes clear,

within the next few years, that the major GHG emitters have little chance of

fulfilling even the initial targets contained in their 2015 pledges?

These questions are addressed in the next Part, which focuses on the

stressors and tensions that could lead the Paris Agreement toward Breakdown

or Breakup.

103

Yuli Shan, et al., Data Descriptor: China CO2 Emission Accounts 1997-

2015, 5 SCI. DATA 1 (2018); Andrew C. Revkin, Bush’s Shift Could Doom Air Pact,

Some Say, N.Y. TIMES (2001).

104

Lauren E. Schmidt & Geoffrey M. Williamson, Recent Developments in

Climate Change Law, 37 COLO. LAW. REV. 63, 64 (2008); David Shorr, Think Again:

Climate Treaties, FOREIGN POL’Y (March 17, 2014),

https://foreignpolicy.com/2014/03/17/think-again-climate-treaties/.

105

See Robert Falkner, The Unavoidability of Justice – and Order – in

International Climate Politics: From Kyoto to Paris and Beyond, 21 BRITISH J. OF

POLITICS AND INTL RELATIONS 270 (2019) (explaining that the dramatic rise in

developing country emissions put a strain on the Kyoto Protocol and arguing that the

“binary logic of Kyoto’s burden-sharing arrangement seemed increasingly out of

touch with global economic reality.”).

106

Dan Bodansky & Eliot Diringer, Building Flexibility and Ambition into a

2015 Climate Agreement (Ctr. For Climate and Energy Solutions 2014).

Electronic copy available at: https://ssrn.com/abstract=3463892

PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

II. TENSIONS IN THE CLIMATE CHANGE REGIME

Since the Paris Agreement was adopted, several factors have raised

the likelihood that it will fall into a downward spiral, rather than the upward

spiral envisioned by negotiators. The optimistic view—that states will be

motivated by reputational concerns to move along the Paris ratchet and

implement deep cuts in emissions—will be severely tested in the 2020s. The

U.S. withdrawal announcement and abdication of leadership could be

replicated by other major emitters, and states may balk at the deep cuts

necessary to stay within the two-degree window. Content to make symbolic

gestures, parties might adhere to the contours of the Paris Agreement while

engaging in practices and policies that lead the world to catastrophic warming

beyond three degrees Celsius.

The tensions in the climate change regime, which I document in this

Part, have little to do with the text of the Paris Agreement. No alternative text

or language could avoid these conflicts. The Paris Agreement was probably

the best text that could have been negotiated at the time given the

constellation of interests at stake, the prior failure of Kyoto-style mandates,

and the need to avoid binding obligations that would have triggered the need

for U.S. Senate ratification.

As we enter the 2020s, however, there are four major tensions that

are destabilizing the Agreement and making it vulnerable to a downward

spiral: 1) the impact of President Trump’s 2017 withdrawal announcement;

2) parties’ lack of progress toward their own voluntary NDCs; 3) political

tensions emerging in reaction to scientific reports about the scale of necessary

emissions reductions; and 4) conflicts among the parties over insufficient

climate change finance.

A. The Impact of the U.S. Withdrawal Announcement

President Trump’s 2017 withdrawal announcement was a major

setback that makes a downward spiral in the Paris Agreement far more likely.

His announcement spoiled the universality that had been one of the Paris

Agreement’s major achievements.

107

It also undermined one of the core

planks of the peer pressure proposition: that the major emitters will be role

models for the rest of the world.

107

Zhang et al., U.S. Withdrawal from the Paris Agreement: Reasons, Impacts,

and China's Response, 8 ADVANCES IN CLIMATE RESEARCH, 220, 222 (2017).

Electronic copy available at: https://ssrn.com/abstract=3463892

30 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

As the largest cumulative emitter of greenhouse gases since the

Industrial Revolution,

108

the United States bears the largest share of

responsibility for the climate crisis. Its withdrawal from the Paris Agreement,

coupled with President Trump’s rollback of Obama Administration climate

policies,

109

casts a long-term shadow over the Agreement and very likely

makes it impossible for the remaining parties to limit warming to two degrees

Celsius.

110

Rising U.S. GHG emissions, which have surged since 2017,

means that other states will have to make even deeper cuts in emissions to

achieve the Paris targets.

111

Politically, the U.S. announcement makes

withdrawal a realistic option for other parties.

Most commentators take a rosier view, suggesting that the reversals

in the Trump Administration will not affect the long-term prospects of the

Paris Agreement.

112

Scholars have stressed that because the U.S. withdrawal

cannot formally take effect until November 2020,

113

President Trump’s 2017

speech in the Rose Garden had no real consequences. Harold Koh, for

example, argued that “Trump’s withdrawal announcement has no more legal

meaning than one of his tweets.”

114

In Europe, scholars have argued that the

U.S. withdrawal is a blessing. The title of one prominent article was “Better

108

Mengpin Ge, et al., 6 Graphs Explaining the World’s Top 10 Emitters,

WORLD RES. INST. (Nov. 25, 2014), https://www.wri.org/blog/2014/11/6-graphs-

explain-world-s-top-10-emitters.

109

84 Environmental Rules Being Rolled Back Under Trump, N.Y. TIMES, Aug

29, 2019, https://www.nytimes.com/interactive/2019/climate/trump-environment-

rollbacks.html

110

See Bang et al., supra note [132], at 214 (“[F]or any comprehensive

international climate agreement to work, it is vital that the world’s most powerful

country shows interest in participation and compliance with its pledges.”). U.S.

emissions rose after President Trump’s announcement, surging 3.4 percent in 2018

alone. N.Y. TIMES, U.S. Carbon Emissions Surged in 2018 Even As Coal Plants

Closed, Jan 8, 2019.

111

Zhang et al., supra note [107] at 222 (explaining that the withdrawal has the

effect of “squeezing other countries’ emission space and raising their mitigation

costs, and this will in turn make it more difficult and expensive to achieve the 2 C

target of the Paris Agreement.”)

112

Nadja Popovich & Tatiana Schlossberg, How Cities and States Reacted to

Trump’s Decision to Exit the Paris Climate Deal, N.Y. TIMES (June 2, 2017),

https://www.nytimes.com/interactive/2017/06/02/climate/trump-paris-mayors.html;

David Choi, How World Leaders are Reacting to Trump’s Decision to Leave the

Paris Climate Agreement, BUS. INSIDER (June 1, 2017),

https://www.businessinsider.com/paris-climate-agreement-reaction-from-world-

leaders-2017-6.

113

Paris Agreement, supra note [1], Art. 20.

114

Harold Hongju Koh, The Trump Administration and International Law, 56

WASHBURN L. J. 413 (2017).

Electronic copy available at: https://ssrn.com/abstract=3463892

PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

Out than In.”

115

According to some European scholars, the U.S. exit will

liberate the remaining parties to strengthen the Paris Agreement without the

U.S. acting as a drag on aspirations.

116

Many scholars have taken solace in

the fact that subnational actors in the United States quickly committed to

emissions reductions to help sustain the Paris Agreement in the absence of

U.S. participation.

117

A more realistic appraisal, however, must acknowledge the gravity

of President Trump’s actions. The withdrawal announcement matters. It was

consequential long before U.S. withdrawal officially occurs in 2020. For the

United States to abandon the Paris process while the process is still in its

infancy sends deeply distressing signals to the international community.

The withdrawal is particularly offensive because the Paris

Agreement had been crafted to satisfy U.S. concerns. From across the

Atlantic, U.S. domestic politics shaped the zone in which agreement could

be reached at Paris, and the text of the Agreement was extensively modified

to satisfy the United States.

118

Parties made NDCs non-binding, for example,

and the Agreement omits strong provisions on climate finance and on liability

for climate change damages because of pressure by the United States.

119

115

Lucas Kemp, “Better Out than In,” 7 NATURE CLIMATE CHANGE 458-460

(2017).

116

Id.

117

See, e.g., Sharmila Murthy, States and Cities as Norm Sustainers: A Role for

Subnational Actors in the Paris Agreement on Climate Change, VIRGINIA ENVTL. L.

J. (2019) (explaining the role of U.S. states and cities in signaling to other nations

that a large portion of the United States remains committed the Paris Agreement).

Harold Koh et al, Trump’s So Called Withdrawal from Paris: Far From Over

(detailing state and local climate initiatives). After President Trump’s

announcement, former Vice President Al Gore and Michael Bloomberg founded an

organization called “America’s Pledge” through which nine states, 230 U.S. cities

and counties, and more than 1500 businesses have committed to work toward the

U.S. NDC even in the face of federal inaction. Adela Suliman, U.S. States,

Businesses Will Step Up to Meet Paris Climate Pledge, REUTERS (August 11, 2017).

118

Noah Feldman, The Paris Accord and the Reality of Presidential Power,

BLOOMBERG, June 2, 2017, https://www.bloomberg.com/view/articles/2017-06-

02/trump-paris-climate-change-and-constitutional-realities.

119

Elizabeth Burleson, Climate-Energy Sinks and Sources: Paris Agreement

and Dynamic Federalism, FORDHAM ENVT. L. REV. 1, 17 (2016); Patpicha

Tanakasempipat, Developed Nations Not Committed to $100 Billion Climate

Finance: Experts, REUTERS (Sept. 5, 2018), https://www.reuters.com/article/us-

Electronic copy available at: https://ssrn.com/abstract=3463892

32 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

President Obama publicly acknowledged that the U.S. NDC had induced

other countries to participate in the process.

120

The U.S. withdrawal was

therefore a “betrayal” to the parties who had made concessions.

121

Worse yet, the Trump Administration is playing a spoiler role in the

remaining years before the withdrawal takes effect. At the most recent

meeting of the parties in Poland in 2018, the United States joined with Russia,

Saudi Arabia, and Kuwait to block a consensus motion on officially

“welcoming” the findings of the IPCC’s report on the impacts of 1.5 degrees

of warming.

122

This unusual action raised fears that the Trump Administration

would not simply sideline the Paris Agreement, but would actively seek to

undermine it.

123

The United States also dissented from the final communiques

at G-20 meetings in 2018 and 2019, objecting to consensus language related

to climate change.

124

Most foreign leaders remain committed to the Paris

Agreement in the face of these theatrics,

125

but for how long will they put up

with the U.S. absence?

The full impact of the U.S. withdrawal depends a great deal on the

2020 U.S. elections.

The best-case scenario is that the United States rejoins the Paris

Agreement in 2021 and that a new President revives the executive actions

and rulemakings that were launched under President Obama, such as the

climatechange-accord/developed-nations-not-committed-to-100-billion-climate-

finance-experts-idUSKCN1LL1CX

120

Remarks on the Paris Agreement on Climate Change, 2016 DAILY COMP.

PRES. DOC. 666 (Oct. 5, 2016) (“We continued to lead by example with our historic

joint announcement with China two years ago, where we put forward even more

ambitious climate targets. And that achievement encouraged dozens of other

countries to set more ambitious climate targets of their own. And that, in turn, paved

the way for our success in Paris.”).

121

Jen Iriris Allan, Dangerous Incrementalism of the Paris Agreement, 19

GLOBAL ENVT POLITICS 4 (2019).

122

Jonathan Watts and Ben Doherty, U.S. and Russia Ally with Saudi Arabia to

Water Down Climate Pledge, THE GUARDIAN, Dec 9, 2018.

123

Id.

124

Simon Denyer & Brady Dennis, As G-20 Reaffirms Fight Against Climate

Change, Trump Again Stands Apart, WASH. POST (June 29, 2019),

https://www.washingtonpost.com/climate-environment/as-g-20-reaffirms-fight-

against-climate-change-trump-again-stands-apart/2019/06/29/d3d96f22-9a68-11e9-

830a-21b9b36b64ad_story.html?utm_term=.6417d29387fb; Angela Dewan, Brian

Ries & Jessica Yeung, Trump and World Leaders Attend G20 Summit, CNN (Dec.

2, 2018), https://www.cnn.com/politics/live-news/trump-g20-summit-2018-

intl/h_b37815325700b56eb84b6bc2cb4ca182.

125

Andrew Woodcock, World Leaders Push Back From Pressure From Trump

to Water Down G20 Climate Change Commitment, Independent, June 29, 2019.

Electronic copy available at: https://ssrn.com/abstract=3463892

PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

Clean Power Plan. Every Democratic candidate has pledged to rejoin the

Paris Agreement.

126

Unfortunately, any new President’s legislative agenda on climate

change would likely be blocked by Republicans on Capitol Hill.

Comprehensive climate change legislation is highly unlikely as long as

Republicans hold more than forty seats in the U.S. Senate and can filibuster

legislation.

127

Every indication is that Senate Republicans would block any attempt

to enact a “Green New Deal” or similarly ambitious climate legislation.

128

Indeed, President Trump’s withdrawal announcement should not be seen as

some peculiarity of this president, but rather as a move fully consistent with

Republican party orthodoxy and climate change denialism dating back at

least twenty years.

129

If a motivated Democratic president takes office, he or

she cannot expect cooperation from across the aisle to enact ambitious

climate change legislation. Even if new President quickly rejoins the Paris

Agreement, he or she would be limited domestically to working within

Executive Branch authority, relying on statutes enacted in the 1970s, just as

President Obama was.

Even under this best-case scenario for re-engagement with Paris, the

United States will likely fall far short of its NDC, which called for a 26 to 28

percent reduction in U.S. emissions below 2005 levels by 2025.

130

The United

States is off track to achieve that goal, and it has lost precious time.

131

126

NYT – How 18 Democratic Candidates Responded to a Climate Policy

Survey.

127

Robinson Meyer, 7 Reasons Democrats Won’t Pass a Green New deal,

https://www.theatlantic.com/science/archive/2019/01/green-new-deal-why-

democrats-will-struggle/581245/.

128

Id. [127]

129

This is When the GOP Turned Away from Climate Policy, E&E News

https://www.eenews.net/stories/1060108785/.

130

Brad Plumer & Nadja Popovich, Here’s How Far the World Is From

Meeting Its Climate Goals, N.Y. TIMES (Nov. 6, 2017),

https://www.nytimes.com/interactive/2017/11/06/climate/world-emissions-goals-

far-off-course.html

131

Id.; John Upton, America’s Climate Plan Falls Short of Its Promises,

CLIMATE CENTRAL (Sept. 26, 2016), http://www.climatecentral.org/news/americas-

climate-rules-fall-short-20731; Justin Worland, U.S. Likely to Fall Short of

International Climate Change Commitments, Study Says, TIME (Sept. 26, 2016),

http://time.com/4505906/climate-change-paris-agreement-united-states/.

Electronic copy available at: https://ssrn.com/abstract=3463892

34 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

The worst-case outcome, from the perspective of Breakdown and

Breakup scenarios, is that President Trump wins reelection in 2020. That

outcome would push any potential U.S. re-engagement with the Paris

Agreement back to 2025 at the earliest. Such a long-term U.S. absence from

the treaty, combined with continued U.S. intransigence on undertaking

carbon mitigation policies and with rising U.S. emissions, could undercut the

willingness of other major emitters such as China, Japan, Australia, India,

Brazil, and Indonesia to submit ambitious second-round NDCs.

132

Several

important states, including Russia, Turkey, and Iran, have yet to ratify the

Paris Agreement, and Turkey has indicated it may never ratify the Agreement

because of President Trump’s withdrawal announcement.

133

Regardless of the outcome of the 2020 election, what has truly been

lost under President Trump is not just U.S. participation in the Paris

Agreement; it is U.S. leadership on climate change. As the Trump

Administration emphasizes fossil fuel extraction, propping up the coal

industry, and off-shore drilling, and as President Trump mocks climate

science and continues to appoint climate change deniers to key posts, the U.S.

government has abdicated any responsibility to reduce emissions.

134

For how

long will other nations take costly steps to decarbonize their economies while

the United States moves in the opposite direction?

132

See, e.g., Young, supra note [12], at 130 (“Certainly, a coalition

encompassing China, the European Union, India, and the United States could put the

international community on a path toward solving the problem of climate change.”);

Guri Bang et al., The Paris Agreement: Short-Term and Long-Term Effectiveness, 4

POL. & GOVERNANCE 209, 209-210 (2016) (noting that a “race to the top” that makes

the Paris Agreement “effective in the long run” depends on “whether major emitters

prove able and willing to take the lead.”).

133

Soila Apparicio & Natalie Sauer, Which Countries Have Not Ratified the

Paris Agreement? CLIMATE HOME NEWS (Dec. 7, 2018),

https://www.climatechangenews.com/2018/07/12/countries-yet-ratify-paris-

agreement; Deniz Cam, Michael Bloomberg and California Governor Jerry Brown

Pledge to Fight Climate Change, FORBES (July 12, 2017),

https://www.forbes.com/sites/denizcam/2017/07/12/michael-bloomberg-and-

california-governor-jerry-brown-pledge-to-fight-climate-change/#37fcc2a18ab2.

referring to Trump’s withdrawal announcement, former Turkish President Recep

Tayyip Erdogan said that his country would not ratify the Agreement because of “that

step taken by America”).

134

Coral Davenport & Lisa Friedman, How Trump is Ensuring That

Greenhouse Gas Emissions Will Rise, N.Y. TIMES (Nov. 26, 2018),

https://www.nytimes.com/2018/11/26/climate/trump-greenhouse-gas-

emissions.html.

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PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

B. Lack of Progress Toward Emissions Reduction Pledges

A second tension that could create a downward spiral for the Paris

Agreement is that many states are not on track to achieve their own first-

round NDCs, which have 2025 or 2030 target dates. If these NDC

shortfalls continue, it will become clear that voluntary action is insufficient

to limit global warming. Persistent shortfalls would increase acrimony and

undermine confidence in the Agreement.

135

Moreover, they will exacerbate

longstanding tensions between developing and developed parties.

Developing countries are not likely to escalate the ambition of their

pledges if developed nations, with far more resources and a greater historic

responsibility for the problem, are falling short on achieving their own

first-round pledges.

Evidence of NDCs shortfalls is accumulating. According to the

latest annual assessment of progress produced by the Dutch Environmental

Assessment Agency,

136

only seven of twenty-five parties analyzed are on

track, with implemented policies, to achieve their NDCs.

137

For the European

Union and for Mexico, the achievement of 2030 targets is uncertain with

implemented policies.

138

For another sixteen states, the Agency was confident

that the parties would not meet their NDCs unless they adopted additional

GHG control measures.

139

The Agency appropriately noted that a party being

“on track” to meets its own pledge is not evidence of that party’s leadership

because the ambition level of the underlying NDCs varies greatly.

140

The Climate Action Tracker, an online resource produced by a

consortium of three international climate consulting firms, shows similar

shortfalls in achieving NDCs. While the initial round of 2015-2016 NDCs,

assuming full implementation, was expected to lead to warming of 2.5 to

135

See, e.g., Lucas Kemp, Better Out than In, supra note [116].

136

Two-Thirds of Major Emitting Countries Still Not on Track to Reach Paris

Climate Proposals, NETH. ENVTL. ASSESSMENT AGENCY (Dec. 07, 2018),

https://www.pbl.nl/node/65210.

137

These include China, Colombia, India, Russia, Saudi Arabia, Turkey, and

the Ukraine. Id. [136]

138

Id. [136]

139

The sixteen countries are Argentina, Australia, Brazil, Canada, Chile,

Democratic Republic of the Congo, Ethiopia, Indonesia, Japan, Kazakhstan,

Morocco, Republic of Korea, South Africa, Thailand, the Philippines, and the United

States. Id. [136]

140

Id. [136]

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36 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

3.8 degrees, the current policy trajectory leads to 2.5 to 4.4 degrees of

warming, according to the Climate Action Tracker, because of slow

progress toward the NDCs.

141

The Climate Action Tracker, unlike the Dutch study, grades

countries not only on whether they are on track to fulfill commitments, but

also on whether the commitments themselves are sufficient to limit warming.

It grades ten countries, including Canada, China, and Japan, as offering

“highly insufficient” NDCs. It grades five countries, including Russia and the

United States, as offering “critically insufficient” NDCs.

142

Distressingly, the Climate Action Tracker has documented little

policy movement since Paris. Its conclusion at the end of 2018 was

ominous: “The majority of countries we track have not yet fully aligned their

policies to actually achieve their commitments under the Paris

Agreement.”

143

Given that major emitting parties are not on track to fulfill their

initial NDCs, what are the prospects that states will substantially enhance

their NDCs in the 2020s? Will reputational incentives or dire scientific

predictions prompt states to speed up their emissions reductions in a matter

of a few years?

More likely, a downward spiral will unfold in the 2020s. The

ratchet mechanism will break down. Parties that are failing to achieve their

first NDC, without suffering any reprisals or repercussions, will be

unlikely to submit a second-round NDC that is more ambitious than the

first. Bound together in an intractable collective action problem, parties

may continue to slow-walk their commitments and pledges in the 2020s,

even in the face of increasingly severe climate impacts.

Some scholars have suggested that parties will remain committed to

the Paris Agreement even if other parties have withdrawn or are not fulfilling

their pledges.

144

Because NDCs are voluntary and are ultimately aligned with

and generated from domestic priorities, it does not matter to a party’s calculus

whether other countries have fulfilled their NDCs.

145

Regardless of what

other countries do, this argument goes, each state will submit NDCs that

accord with its evolving conception of its self-interest.

146

141

Some Progress Since Paris, But Not Enough, as Governments Amble

Towards 3℃ of Warming, CLIMATE ACTION TRACKER (Dec. 11, 2018),

142

Id.

143

Id. [143]

144

Robert O. Keohane & Michael Oppenheimer, Paris: Beyond the Climate

Dead End Through Pledge and Review?, 4 POL. & GOVERNANCE 142 (2016).

145

Id. [144]

146

David Victor, “Making the Promise of Paris a Reality” in THE PARIS

AGREEMENT AND BEYOND: INTERNATIONAL CLIMATE CHANGE POLICY POST-2020

17 (Robert N. Stavins & Robert C. Stowe eds., Harv. Project on Climate Agreements

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PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

I am skeptical that parties will remain unperturbed in the face of the

failures of other parties, especially as climate impacts become more severe

in the next decade. The challenge of the 2020s is to sustain cooperation along

the ratchet mechanism such that governments make meaningful, ambitious

pledges beyond what they believe they can achieve with minimal effort. If

ambitious pledges are to be sustained, parties will undoubtedly care whether

other parties are meeting their own goals, investing substantial resources, and

committing to deep emissions cuts.

Cooperative environmental regimes can be sustained only if parties

perceive that other parties are making appropriate sacrifices.

147

Climate

change is, after all, a tragedy of the commons. An effective solution must

incentivize parties to go beyond purely self-interested policies for the good

of preserving the commons as a whole.

148

Seen in this light, the expected shortfall on first-round NDCs cannot

be dismissed as an unfortunate early stumble. The shortfall in NDCs will

matter a great deal politically, economically, and diplomatically in the 2020s,

and it could easily lead to Breakdown or Breakup scenarios.

149

The inability

or unwillingness of countries to take actions domestically to achieve their

own voluntary pledges will provoke intense arguments over justice and

equity—arguments about whether major emitters are doing their “fair share.”

Widespread NDC shortfalls will also complicate the process of making

further rounds of pledges in the 2020s, because, according to the latest

science, states will have to increase their pledges, dramatically.

2016) (“most countries are promising and doing what makes sense largely with

regard to their own national interest.”).

147

Keohane & Victor, Cooperation and Discord in Global Climate Policy,

supra note [19].

148

Sourgens, supra note __ at 912 (“The core intent behind the Paris Agreement

was to escape from a tragedy of the commons.”).

149

Id. at 914 (discussing the Paris Agreement in terms of a prisoners’ dilemma

and arguing that if cooperation on GHG reductions is “feigned,” all parties would

have an incentive to defect from the Agreement, “a result that would be plainly

predictable given the incentive structure.”).

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38 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

C. Conflicts Related to the Scale of Necessary Emissions

Reductions

A third tension that threatens to unravel the Paris Agreement in the

2020s is that the scale of necessary emissions reductions has become

daunting—and perhaps overwhelming. We are paying a procrastination

penalty for past inaction.

The magnitude of necessary reductions will likely create protracted

conflicts among the Paris parties. As NDC shortfalls become apparent and as

the window for achieving the temperature goals of the Paris Agreement

closes, there will likely be intense arguments over which countries need to

make more effort. These arguments will destabilize the Agreement because

the treaty itself offers no mechanism to allocate effort. It offers no clear path

to force a state to do more. Many vulnerable states will likely charge that the

major emitters are engaged in unjust, gluttonous consumption, and they will

become frustrated with a treaty system that cannot constrain emissions

growth. The end result of this fruitless acrimony over who needs to “do more”

is that parties may question their own adherence to an Agreement that is not

achieving anything close to the necessary cuts in emissions.

Consider the emerging science: to limit warming to less than 1.5

degrees Celsius, nations would have to cut their CO2 emissions (principally

from burning oil, coal, and natural gas) by more than 50 percent in the

2020s.

150

According to the IPCC, staying within the 1.5-degree window

requires GHG mitigation costs that are three to four times higher than the

costs of staying within the two-degree window.

151

To limit warming to less than two degrees Celsius, the needed

reductions are less severe but are nonetheless breathtaking. Global GHG

emissions would need to peak very soon and then drop continually through

2050.

152

If they peak in 2025, global emissions will need to decline by 5 to 8

percent annually through 2050 to stay within the two-degree goal of the

Agreement.

153

This is a faster rate of GHG reduction than any nation has ever

150

INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, SPECIAL REPORT:

GLOBAL WARMING OF 1.5 C, SUMMARY FOR POLICY MAKERS 14 (2018). The IPCC

specifically notes that global CO2 emissions would have to decline 45% from 2010

levels by 2030 to limit warming to less than 1.5 degrees Celsius. Id. Because global

emissions in 2020 are higher than 2010 levels, the necessary reductions are even

steeper than this 45% figure.

151

Id. [150]at 18.

152

MARIANNE FAY ET AL., WORLD BANK GROUP, DECARBONIZING

DEVELOPMENT: THREE STEPS TO A ZERO-CARBON FUTURE 40-41 (2015),

https://openknowledge.worldbank.org/handle/10986/21842 (discussing implications

of various peak years for the rate of needed reductions thereafter).

153

Id. [152]

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PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

achieved, yet this rate would have to be sustained globally.

154

Furthermore, it

is likely that developing nations would demand that the developed parties

commit to even steeper annual reductions, to allow room for emissions

growth in the poorest countries in the world.

155

Parties’ pledges to date under the Paris Agreement are nowhere near

sufficient to keep the world on this steep downward emissions trajectory.

According to the United Nations Environment Programme (UNEP), the

emissions reductions anticipated with existing NDCs (about 6 billion tons)

need to be roughly tripled to stay on track for a two-degree Celsius scenario

and quintupled to limit warming to 1.5 degrees Celsius.

156

Looking solely at emissions reductions that need to occur in the

2020s, UNEP calculated an “emissions gap” of thirteen to fifteen billion tons

of CO

equivalent.

157

In other words, in one decade, governments must

achieve thirteen to fifteen billion tons of additional GHG emissions

reductions beyond what they have already pledged in their NDCs. To give

some sense of the scale of the emissions gap, consider that the annual

emissions from the entire European transport sector, including aviation, is

154

Id. at 40. The fastest rate of GHGs reduction by a single country is believed

to have occurred in France in the 1970s and 1980s, when France’s emissions dropped

2 percent annually due to its embrace of nuclear power. David Biello, How Nuclear

Power Can Stop Global Warming, SCIENTIFIC AMERICAN, Dec. 12, 2013,

https://www.scientificamerican.com/article/how-nuclear-power-can-stop-global-

warming/. The European Union as a whole achieved a 2.2 percent average annual

rate of GHG emissions reduction between 2006 and 2016. Brad Plumer and Nadja

Popovich, CO2 Emissions Were Flat for Three Years. Now They’re Rising Again,

N.Y. TIMES, Nov 13, 2017,

https://www.nytimes.com/interactive/2017/11/13/climate/co2-emissions-rising-

again.html

155

Annalisa Savaresi, The Paris Agreement: A New Beginning?, 34 J. ENERGY

& NAT. RESOURCE L. 16 (2016); Kong Xiangwen et al., Achieving Accountability in

Climate Negotiations: Past Practices and Implications for the Post-2020 Agreement,

15 CHINESE J. INT’L L. 545 (2015); Shyam Saran, Paris Climate Talks: Developed

Countries Must Do More Than Reduce Emissions, GUARDIAN (Nov. 23, 2015),

https://www.theguardian.com/environment/2015/nov/23/paris-climate-talks-

developed-countries-must-do-more-than-reduce-emissions.

156

U.N. ENV’T PROGRAMME, The Emissions Gap Report 2018, xv (Nov. 2018).

157

U.N. ENV’T PROGRAMME, The Emissions Gap Report 2018, xviii (Nov.

2018).

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40 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

about one billion tons.

158

The thirteen to fifteen-billion ton emissions gap is

massive, and countries must somehow be incentivized to close it, but the

Paris Agreement, as noted above, contains no mechanism to allocate effort.

The parties will therefore have to fight among themselves, with no clear

textual guidance, over who will close this emissions gap through their

second- and third-round NDCs.

The political implications of the necessary scale of emissions

reductions are now clear. While a gradual glidepath of reductions would have

sufficed if governments had started thirty years ago, in the 2020s aggressive

action by governments will be essential. Many have compared it to a war

mobilization.

159

The needed actions include imposing substantial energy

taxes, ending $550 billion in annual subsidies for fossil fuels, remaking the

world’s energy systems, and halting deforestation.

160

About one-third of all

known reserves of oil and 80 percent of all known reserves of coal will have

to remain in the ground to limit global warming to less than two degrees

Celsius.

161

Renewable energy will have to be scaled up substantially, from

serving 10 percent of global energy demand today to serving 40 percent or

more of global energy demand by the end of the decade.

162

In the next decade, intense conflicts will likely arise between the

handful of parties that are actually implementing policies consistent with

steep emissions reductions, primarily in Europe, and the majority of parties

that are making half-hearted efforts.

163

Globally, there are more than 1200

new coal-fired power plants under construction or in the permitting stage

(464 in China alone), and many governments are now locking in a fossil fuel

158

See Press Release, Env’t Programme, “World Must Urgently Up Action to

Cut a Further 25% from Predicted 2030 Emissions, Says UN Environment Report,”

U.N. Press Release (Nov. 3, 2016).

159

Lester R. Brown, Plan 3.0: Mobilizing to Save Civilization 265 (W.W.

Norton & Company, 5th ed. 2008); Sarah Wesseler, Climate Mobilization Plea:

Cities Must Declare Emergency, YALE CLIMATE CONNECTIONS (Sept. 9, 2018),

https://www.yaleclimateconnections.org/2018/09/climate-mobilization-plea-cities-

must-declare-emergency/.

160

INT’L ENERGY AGENCY, WORLD ENERGY OUTLOOK 2014 (2014),

https://www.iea.org/publications/freepublications/publication/WEO2014.pdf.

161

Christophe McGlade & Paul Ekins, The Geographic Distribution of Fossil

Fuels Unused When Limiting Global Warming to 2 C, 517 NATURE 187 (2015).

162

Robert Rapier, Renewables Catching Nuclear Power in Global Energy

Race, FORBES (July 7, 2019),

https://www.forbes.com/sites/rrapier/2019/07/07/wind-and-solar-power-nearly-

matched-nuclear-power-in-2018/#1d60ba39eec3.

163

Finland, for example, recently committed to become carbon-neutral by 2035.

Alessio Perrone, “Finland Vows to Become Carbon Neutral by 2035,” The

Independent, June 4, 2019,

https://www.independent.co.uk/news/world/europe/finland-carbon-neutral-fossil-

fuels-climate-change-global-warming-a8943886.html

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PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

infrastructure that will be emitting carbon through the middle of the

century.

164

According to one recent study, projected emissions from both

existing and proposed fossil fuel infrastructure make it impossible to limit

warming to less than 1.5 degrees, and these facilities will use about two-thirds

of the available carbon budget for a 2 degree scenario.

165

In the 2020s, when scientists are calling for dramatic cuts in global

emissions, the majority of Paris Agreement parties intend to increase

emissions.

166

The majority of Paris Agreement parties are in the developing

world, and with few exceptions, these nations submitted NDCs that permit

them to increase emissions, though at a slower rate than their hypothetical

business-as-usual projections.

167

These states are not just small players. By

2030, 45 percent of global GHG emissions will come from states that have

not yet peaked in their emissions trajectory.

168

With so many governments committed to increasing their GHG

emissions through 2030 and beyond, the stage is set for the 2020s to be a

decade in which the scale of necessary reductions will simply overwhelm

governments’ willingness or ability to achieve them. Governments will likely

164

According to the U.S. Energy Information Administration, fossil fuels will

still account for about 78 percent of global energy demand in 2040. U.S. ENERGY

INFO. ADMIN., INTERNATIONAL ENERGY OUTLOOK 2016, at 1 (2016),

https://www.eia.gov/outlooks/ieo/pdf/0484(2016).pdf. As of January 2019, there

were 1214 new coal-fired power plants under construction or in the permit process

around the globe, including 464 plants in China alone. See ENDCOAL, COAL PLANTS

BY COUNTRY (UNITS) (2019), https://endcoal.org/global-coal-plant-

tracker/summary-statistics/

165

Dan Tong et al, Committed Emissions from existing energy infrasturcutre

jeopardize 1.5 C Climate Target, 572 Nature 373 (2019).

166

UNEP Emissions Gap report 2018 at xvi (projecting that only fifty-seven

parties will peak their emissions by 2030, leaving well over 100 parties whose

emissions will continue to rise even after 2030).

167

NDC Comparison, CLIMATE WATCH,

https://www.climatewatchdata.org/ndcs-content (last visited May 6, 2019).

168

See Pamela Duncan, “Critical Mass of States Will Reach Emissions Peak by

2030 Under Climate Deal,” GUARDIAN, Dec. 13, 2015,

https://www.theguardian.com/environment/datablog/2015/dec/13/emissions-peak-

by-2030-climate-deal-co2. India is one example of a major emitting country that

plans to increase its GHG emissions throughout the 2020s. India’s NDC, if fully

implemented, will likely lead to a 90 percent increase in its GHG emissions between

2014 and 2030. Analysis: India’s Climate Pledge Suggests Significant Emissions

Growth Through 2030, https://www.carbonbrief.org/indias-indc.

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42 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

perceive a high political and economic cost to making pledges that would be

collectively sufficient to stay on track toward the two-degree goal. Instead,

many of them will dissemble or pursue a strategy of making symbolic

gestures toward reduction,

169

the Breakdown scenario I describe in Part III.

Conflicts among the parties will likely worsen as acrimony over who is

making enough “effort,” largely avoided at Paris, will resurface. The

incentives for states to withdraw, defect, slow-walk, or stonewall will

become stronger in the 2020s, as deeper, more costly carbon reductions are

required.

D. Conflicts over Climate Finance

Conflicts over climate finance are the last major set of tensions that

could tip the Paris Agreement into a downward spiral. Climate finance refers

to funds provided by developed countries to developing countries for both

mitigation of GHG emissions and for investments in climate change

adaptation. In the 2020s, the scale of climate change finance will become

central to parties’ perception of whether the Paris Agreement is working.

Reneging on promises on climate finance could hurt the prospects for the

treaty as much, or more so, than shortfalls on achieving NDCs.

Developed countries have made substantial climate finance

promises. In the 2009 Copenhagen Accord, they pledged to mobilize $100

billion annually in climate finance by 2020, which would be comprised of a

mix of public and private sources.

170

In response to U.S. pressure, language

regarding that $100 billion annual commitment was excised from the Paris

169

See David Victor, What the Framework Convention on Climate Change

Teaches Us About Cooperation on Climate Change, 4 POL. & GOVERNANCE 133,

137 (2016). (noting that because the Agreement is “organized around goals that are

not achievable,” it will make the “periodic stocktaking difficult to do with honesty.”).

170

U.N. Framework Convention on Climate Change, Report of the Conference

of the Parties on its Fifteenth Session, Held in Copenhagen from 7 to 19 December

2009, U.N. Doc. FCCP/CP/2009/Add.1 (March 30, 2010); Jim Tankersley, U.S.,

China, Others Join Copenhagen Accord on Climate, L.A. TIMES (Feb. 2, 2010),

https://www.latimes.com/archives/la-xpm-2010-feb-02-la-fg-climate-accord2-

2010feb02-story.html.

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PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

Agreement itself.

171

Instead, that figure was relegated to text of the final

report of the Conference of the Parties at Paris.

172

Many analysts doubt that $100 billion is climate finance is actually

flowing to the developing world.

173

The debate centers around what qualifies

as climate finance and whether climate finance is a substitute for, or

additional to, other forms of development assistance.

174

Developed nation

pledges to the Green Climate Fund, the leading source of governmental

climate assistance to the developing world, have totaled $10.3 billion since

2010, but governments have transferred only about $3.5 billion to the Fund.

175

In 2017, President Trump terminated any new U.S. contributions to the

Fund.

176

On the verge of the new decade, it seems unlikely that the developed

world will raise and distribute $100 billion annually through the 2020s to

finance climate change mitigation and adaptation in the developing world.

If developed countries fall short of the $100 billion annual

commitment, they could trigger a downward spiral into Breakdown or

Breakup. This climate finance commitment has now become a rallying cry

for developing states, and many are questioning the Agreement given the

171

Elizabeth Burleson, Climate-Energy Sinks and Sources: Paris Agreement

and Dynamic Federalism, Fordham Envt. L. Rev. 1, 17 (2016); Patpicha

Tanakasempipat, Developed Nations Not Committed to $100 Billion Climate

Finance: Experts, REUTERS (Sept. 5, 2018), https://www.reuters.com/article/us-

climatechange-accord/developed-nations-not-committed-to-100-billion-climate-

finance-experts-idUSKCN1LL1CX.

172

See COP decision para. 54 (extending the $100 billion goal though 2025 and

providing that the parties shall set a new quantified goal prior to 2025).

173

See Timmons Roberts & Romain Weikmans, Roadmap to Where? Is the

‘$100 Billion by 2020’ Pledge from Copenhagen Still Realistic?, BROOKINGS

INSTITUTION, Oct. 20, 2016,

https://www.brookings.edu/blog/planetpolicy/2016/10/20/roadmap-to-where-is-the-

100-billion-by-2020-pledge-from-copenhagen-still-realistic/.

174

Id. [173]

175

Resource Mobilization, GREEN CLIMATE FUND,

http://www.greenclimate.fund/how-we-work/resource-mobilization (last visited

Sept. 2, 2017); Rich Nations Vowed Billions for Climate Change. Poor Countries

Are Waiting, https://www.nytimes.com/2018/09/09/world/asia/green-climate-fund-

global-warming.html

176

Rich Nations Vowed Billions for Climate Change. Poor Countries Are

Waiting, supra

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44 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

likelihood that the commitment will not be fulfilled.

177

If the climate finance

promises remain unmet, support for the Paris Agreement among developing

countries could erode. Moreover, many developing countries cannot commit

to, or implement, substantial reductions in GHG emissions without outside

assistance.

178

The money is needed to finance emissions reductions in the

developing world, from improving energy efficiency to electrifying

transportation systems to reducing deforestation.

179

During the Paris negotiations, some countries explicitly made their

NDCs contingent on the availability of climate change finance from the

developed world. According to one analysis, NDCs from 111 developing

nations mentioned the need for outside financial support to achieve their

targets, and of those, thirty-one nations provided quantitative analysis of how

much they would need.

180

India, for example, stated that $2.5 trillion in new

international climate finance would be needed to implement its NDC by

2030.

181

Climate finance will likely be a major fault-line in the Paris

Agreement “stocktakes” scheduled to take place in 2023 and 2028. While the

media focuses on whether the Green Climate Fund can actually raise $10

billion in the wake of President Trump’s termination of U.S. funding,

182

that

figure is a far cry from mobilizing $100 billion annually in both public and

private sector funding. In the absence of that promised funding, developing

countries may refuse to make emissions reductions pledges commensurate

with the Paris Agreement temperature goal.

III. THE BREAKDOWN AND BREAKUP SCENARIOS

Given the tensions described in Part II, the Paris Agreement is now

in serious danger of a downward spiral in the 2020s. This downward spiral

177

Zhang Yong-Xiang, et al., The Withdrawal of the U.S. From the Paris

Agreement and its Impact on Global Climate Change Governance, 8 ADVANCES

CLIMATE CHANGE RES. 213, 215 (2017).

178

GLOBAL LANDSCALE OF CLIMATE FINANCE 2017, 10-12 (2017)

https://climatepolicyinitiative.org/wp-content/uploads/2017/10/2017-Global-

Landscape-of-Climate-Finance.pdf

179

Id.

180

Hana Biru & Joe Thwaites, Examining Finance Needs in Countries’

National Climate Plans (INDCs), World Resources Institute, Nov 27, 2015,

https://www.wri.org/blog/2015/11/insider-examining-finance-needs-countries-

national-climate-plans-indcs.

181

India’s Intended Nationally Determined Contribution: Working Towards

Climate Justice (2015),

http://www4.unfccc.int/ndcregistry/PublishedDocuments/India%20First/INDIA%2

0INDC%20TO%20UNFCCC.pdf.

182

Rich Nations, supra note 186.

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PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

will be characterized by shortfalls in NDCs, slowing ambition,

disengagement, and further withdrawals. With no enforcement mechanisms

and no benchmarks for whether any party is fulfilling its fair share of the

mitigation effort, the Paris Agreement is still “far from a serious scheme for

deep international cooperation.”

183

Should a downward spiral occur under the Paris Agreement, it will

likely result in one of two endpoints: Breakdown or Breakup. The two

endpoints are not mutually exclusive. Breakdown might be the initial result

and might unfold within the next several years, culminating in Breakup

further down the road. Either scenario would likely result in ecological

catastrophe, as warming would likely accelerate beyond two degrees Celsius

under either scenario, and there is no other treaty in place to constrain the rise

in emissions. In this Part, I explore what the Breakdown and Breakup

scenarios might look like, their implications for addressing climate change,

and what could emerge in the wake of these scenarios.

A. The Breakdown Scenario

In Breakdown, the pledge and review process of the Paris Agreement

would slow, dissension and acrimony would increase, and the treaty’s

impacts would be modest. Parties may not reach their own GHG reduction

pledges, they may submit minimal pledges, or they may purposely slow-walk

progress toward their own goals, perhaps incensed that major emitters are not

making sufficient progress. In Breakdown, the Paris Agreement would

remain the principal forum for climate change negotiations, but the

commitments made in the 2020s will fall short of the trajectory needed to

keep warming to “well below” two degrees Celsius.

The Breakdown scenario could be evident by the time of the first

global “stocktake” under the Paris Agreement, scheduled for 2023. That

stocktake is meant to “inform the preparation of [NDCs]”

184

for a second

round of commitments, but it is not clear how that stocktake will ensure that

parties commit to much deeper cuts in emissions. Recall that staying on the

two degree trajectory requires that parties achieve 13-15 billion tons of GHG

183

David Victor, What the Framework Convention on Climate Change Teaches

Us About Cooperation on Climate Change, 4 POL. & GOVERNANCE 133, 138 (2016).

184

Decision I/CP.21, ¶ 20.

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46 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

reductions beyond their existing NDCs by 2030.

185

How will these cuts be

allocated among the parties in the 2020s? What will happen if a party submits

an NDC deemed by others to be insufficient? And by what benchmark will

parties judge whether a party’s NDC represents its “highest possible

ambition”?

186

The lack of clear benchmarks in the Agreement is one of the reasons

that Breakdown is a plausible scenario for the 2020s. There is no definition

for appropriate “ambition” in the Agreement. There is no official body to

determine which countries could commit to greater reductions beyond those

named in their NDCs, and even if there were, such determinations would

devolve in controversies over equity and historic responsibility.

187

It is not easy to determine who should “do more.” Such a process

necessarily entails outsiders making judgments about a state’s future

economic growth, mix of industries, bureaucratic capacity and competence,

national priorities, and whether there is some mitigation potential the

government has overlooked. In the run-up to Paris, many scholars suggested

objective benchmarks by which to measure a party’s progress under the Paris

Agreement, but none of these suggestions were adopted.

188

As an example of how progress could stall under Breakdown,

consider a pledge from State X in 2015 to cut emissions 30 percent below

2005 levels by 2030. Assume that by 2023 State X commits to reduce

emissions an additional 10 percent below 2005 levels by 2040. On its surface,

this second NDC is less ambitious than the first NDC. But if State X has

experienced rapid economic growth or population growth, if it has taken

climate policy measures that have decreasing marginal returns, or if its

185

See text accompanying note 164.

186

There are multiple competing views of fairness under the Paris Agreement,

given scientific uncertainty, historic emissions versus current and future emissions,

and asymmetrical vulnerability to climate impacts. See Keohane & Oppenheimer,

supra note [19] at 142, 143. See also Carlane and Colevecchio, Balancing Equity and

Effectiveness: The Paris Agreement & The Future of Intl Climate Change Law,

SSRN at 15 (discussing studies that have attempted to measure climate equity and

noting competing definitions of a “fair” distribution of mitigation burdens).

187

For a survey of the growing literature on this issue, see Niklas Hohne et al.,

Assessing the Ambition of Post-2020 Climate Targets: A Comprehensive

Framework, 18 CLIMATE POLICY 425 (2017).

188

Lena Donat and Ralph Bodle, for example, suggested “dynamic adjustment”

triggers that would require a party to submit an NDC based on objective standards,

such as elapsed time or the findings of IPCC reports. Lena Donat & Ralph Bodle, A

Dynamic Adjustment Mechanism for the 2015 Climate Agreement: Rationale and

Options, 8 CARBON & CLIMATE L. REV. 13 (2014). They also proposed a committee

that would evaluate NDC submissions to determine if they are appropriately

ambitious for each country, and an “automatic ratchet-up mechanism” that would

increase each party’s NDC by some fixed percentage unless the parties negotiated

otherwise. Id. at 20. [188]

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PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

industrial base is in danger of being globally non-competitive, an additional

ten percent emissions reduction might be all the “effort” State X can expend

on GHG reductions in that time period. It might argue that it can escalate its

NDC only if the incremental cost is fully financed by wealthier parties. It

might assert that the low-hanging fruit of emissions reductions has already

been picked. If pressured by other parties, State X could reasonably defend

its pledge as being incrementally more ambitious.

The Agreement itself provides little guidance for what to do in these

situations. Parties cannot force particular targets or reduction strategies on

other parties. There is no clear method to allocate effort—to determine

formally who has to take measures to keep aggregate emissions within the

two-degree window. Article 13 of the Agreement establishes a transparency

framework for national reporting of emissions, international expert review of

the data, and exchange of information on the actions of other parties.

189

But

the Agreement is clear that this is not meant to be a process to “call out”

parties to step up their implementation of their NDCs. Instead, the Agreement

states that “transparency [measures] shall . . . be implemented in a facilitative,

non-intrusive, non-punitive manner . . . and avoid placing undue burden on

Parties.”

190

Similarly, the five-year global stocktakes are designed to “assess the

collective progress towards achieving the purpose of [the] agreement.”

191

Formally, the Agreement does not provide a mechanism to call out individual

parties for their lack of progress, and as discussed in Part I, peer pressure and

reputational concerns are not likely to be strong motivators for ambitious

action.

Domestic concerns, not the peer pressure proposition, will ultimately

determine whether governments submit ambitious NDCs consistent with a

two-degree Celsius carbon budget. Governments may calculate that they will

not or cannot implement policies consistent with moving along the ratchet

mechanism. Most governments will balk at forcing an energy transition on

their own economies to achieve five to eight percent annual reductions in

GHG emissions—a more aggressive pace of reduction than any nation has

ever achieved.

192

Consequently, the most likely pattern we will see in the 2020s is that

developed states will propose NDCs that are only incrementally more

189

Paris Agreement, Art. 13.

190

Id. [189]

191

Id. [189], Art 14 (emphasis added).

192

See discussion of prior rates of GHG reductions at note

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48 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

ambitious, while developing states will continue to insist on their right to

increase GHG emissions to grow their economies. With each review

conference, parties will likely tout their ongoing “progress,” but their actions,

collectively, will be insufficient to prevent catastrophic warming.

In the Breakdown scenario, governments will likely be risk-averse,

lowballing their pledges. They may be reluctant to commit to aggressive,

long-term targets for emission reductions because GHG emissions rates, in

the final analysis, are not under sole governmental control. Unlike an arms

control treaty, where governments can directly control the pace of arms

reductions to match their treaty commitments,

193

in climate change the

trajectory of a nation’s greenhouse gas emissions depends on factors outside

of immediate government control: the rate of economic growth, the mix of

fuels in the economy, technological development, and the actions of millions

of private actors.

194

Governments can surely influence these factors, but they

do not directly control them. The natural inclination of governments,

therefore, is to lowball promises of GHG reductions, rather than to commit

to aggressive cuts.

One signal that a Breakdown scenario is occurring is if parties opt to

withdraw existing NDCs and submit ones that are less ambitious. Such

backsliding could perhaps occur after a change of government or in a tit-for-

tat response to clear evidence that other parties are not on track with their

NDCs. Some states might want to take advantage of this process simply

because they are falling short of their own NDC.

In 2017, policymakers and scholars extensively discussed the option

of weakening an existing NDC as an option for the United States that would

be preferable to full withdrawal from the Agreement.

195

Many believed that

President Trump, committed to non-action under Paris, should just modify

President Obama’s NDC by submitting a much weaker one that would avoid

the political fallout from withdrawing from the Agreement.

196

The Paris Agreement is ambiguous on whether this weakening of

NDCs is permissible. Article 4.11 states that a party “may at any time adjust

193

See Barry Blechman & Ruth Greenspan Bell, A Course Adjustment for

Climate Talks, Issues in Science and Technology, Winter 2012 (comparing climate

change negotiations and arms control negotiations); Victor, supra note ___ (What

the Framework Convention can Teach Us) at 137-38 (same).

194

See UNITED NATIONS, WORLD ECONOMIC SITUATION AND PROSPECTS 2019

70 (2019)(connecting rise in GHG emissions to global macroeconomic trends).

195

Bob Perciasepe et al., Paris Agreement Presents a Flexible Approach for

U.S. Climate Policy, 11 CARBON AND CLIMATE L. REV. 283 (2017); Ted Nordhaus &

Alex Trembath, Trump’s Paris Agreement Withdrawal in Context: The Polarization

of the Climate Issue Continues, FOREIGN AFFAIRS (June 5, 2017),

https://www.foreignaffairs.com/articles/world/2017-06-05/trumps-paris-agreement-

withdrawal-context.

196

Id. [195]

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PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

its [NDC] with a view to enhancing its level of ambition.”

197

While some

commentators read this provision as a one-way ratchet, permitting

adjustments only in an upward direction,

198

others contended that the “with a

view” language is hortatory rather than mandatory, and therefore, nothing

prevents a party from withdrawing an NDC and submitting a weaker NDC in

its place.

199

With the United States opting to withdraw from the Agreement,

this debate remains unsettled, and it is likely to resurface in the 2020s.

The above analysis focuses principally on the ratchet mechanism for

NDCs, but Breakdown could also unfold simply through sub-par

performance on existing NDCs. If it is clear in the next few years that major

emitting parties will fall far short of their 2025 or 2030 pledges, it is doubtful

that other parties would increase their efforts to counteract the shortfall with

the aim of preserving a limited carbon budget. Instead, the most likely

outcome is that other parties will feel justified in backsliding themselves,

feeling relieved of the stringency of their own NDC. As Simon Caney has

observed, if there is a shortfall in a major emitting country’s efforts to achieve

its NDC, it raises not only a technical issue in the sense that the party will

emit more GHGs than anticipated, but also a “shortfall in justice.”

200

Parties

will receive the message that NDC shortfalls will be tolerated without severe

repercussions.

In sum, because of the tensions discussed in Part II, governments in

the 2020s could easily perceive their self-interest as pulling in the opposite

direction from the norms that animated the Paris conference in 2015—norms

of reciprocity and cooperation. According to Robert Keohane and Michael

197

Paris Agreement, art. 4.

198

See, e.g., Lavanya Rajamani, The U.S. and the Paris Agreement: In or Out

and at What Cost?, EJIL TALK, (May 10, 2017), https://www.ejiltalk.org/the-us-and-

the-paris-agreement-in-or-out-and-at-what-cost; Doelle, supra note [49], at 14

(explaining that while it is implicit that “Parties are not to weaken their NDCs at any

time, this is not made as explicit in the Paris Agreement . . . .”).

199

See, e.g., Susan Biniaz & Daniel Bodansky, Ctr. for Energy & Climate Sols.,

Legal Issues Related to the Paris Agreement 1 (2017),

https://www.c2es.org/docUploads/legal-issues-related-paris-agreement-05-17.pdf.

See also Letter from Kevin Cramer et al., Congressman, House of Representatives,

to President Trump (Apr. 27, 2017),

http://online.wsj.com/public/resources/documents/20170508cramer.pdf (“[T]he

U.S. should present a new pledge that does no harm to the economy.”).

200

Simon Caney, The Struggle for Climate Justice in a Non-Ideal World, 40

MIDWEST STUD. IN PHIL. 9, 12 (2016).

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50 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

Oppenheimer, this dynamic could lead to a “low-level equilibrium,” in which

future commitments are no more ambitious than current ones.

201

In the low-

level equilibrium, wealthy nations of Europe and North America as well as

China and India would “pursue essentially business as usual under the cover

of an agreement (thereby protecting their reputations).”

202

Poor and middle-

income countries will “pretend to combat climate change and the rich

countries will pretend to pay them for doing so.”

203

Procedural compliance could continue in this low-level

equilibrium—the Breakdown scenario—but substantive effectiveness would

be low. The result would be catastrophic ecosystem damage as the window

to limit warming to less than two degrees Celsius closes.

B. The Breakup Scenario

What if cooperation falters even further than in the Breakdown

scenario just described? A lack of progress under the ratchet mechanism

could seriously destabilize the Agreement. Important parties may withdraw

from Paris, following President Trump’s lead, or they might disengage

without formal withdrawal. Would the Paris Agreement then fall apart or fall

into irrelevancy? Could Breakdown lead to Breakup?

The Breakup scenario is the collapse of the Paris Agreement. It

would be characterized by persistent unbridgeable conflicts and multiple

parties formally withdrawing or otherwise disengaging from the treaty.

It is difficult to assign any probability to Breakup, but it is clear that

the underlying incentives for Breakup exist even now. Climate change is an

unusually difficult environmental, economic, and social problem—perhaps

uniquely difficult. Scholars have called it a “super-wicked” problem.

204

The

philosopher Stephen Gardiner has explained that inaction results from a

“perfect moral storm” in which governments and individuals justify passing

burdens to future generations, believe they lack agency over the problem, and

fail to form clear judgment about the ethical stakes.

205

In climate change, the benefits of any nation’s GHG mitigation

efforts flow primarily to the rest of the world (and of course in part to the

nation itself), but the costs of mitigation fall on domestic industries,

201

Keohane & Oppenheimer, supra note [19] at 149-150.

202

Id.

203

Id.

204

Richard J. Lazarus, Super Wicked Problems and Climate Change:

Restraining the Present to Liberate the Future, 94 CORNELL L. REV. 1153, 1157

(2009) (explaining that climate change legislation “is peculiarly vulnerable to being

unraveled over time” because “it imposes costs on the short term for the realization

of benefits many decades and sometimes centuries later”).

205

STEPHEN GARDINER, A PERFECT MORAL STORM: THE ETHICAL TRAGEDY OF

CLIMATE CHANGE 22-40 (2011).

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PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

taxpayers, and ratepayers. The incentives for long-term cooperative action

under these conditions are particularly “malign.”

206

Add to this the inter-

generational nature of the problem, where the current generation consumes

fossil fuels and denudes forests, while the harms from heating the atmosphere

extend principally to persons in future generations.

207

Under these conditions, there are strong underlying incentives for

Paris Agreement parties to free-ride by “posing” as willing actors while

actually doing not much at all. Indeed, as Robert Keohane and David Victor

have argued, many parties are participating in the Paris process not because

they want to save the planet, but because they want to extract various benefits

from other states, including financial assistance.

208

As a result, their NDCs

are minimally sufficient, and they have little interest in strengthening them

to the point of making deep economic changes to limit global warming.

209

As free-riding becomes evident in the face of increasingly severe

climate impacts, committed states may conclude that they are being duped.

Their incentive to carry the laboring oar on emissions reductions may erode.

They may look for the exits—or they may look for alternative GHG reduction

arrangements, outside the formal structure of the Paris Agreement.

210

These

206

Keohane & Victor, supra note [19], at 4.

207

See GARDINER, supra note 218, at 141 (referring to the “intergenerational

storm” of climate change).

208

Keohane and Victor observed that there are several clusters of countries in

the climate regime with different interests, including wealthy nations in the

Organization for Economic Co-operation and Development, high-emitting middle-

income countries such as China, low-lying island nations, and other blocs. According

to Keohane and Victor, only one cluster of states (primarily in Europe) is motivated

in part by an interest to provide global ecosystem benefits by addressing climate

change. Other states submitted NDCs that correlated with achieving domestic “co-

benefits” such as reduced air pollution, to extract side-payments from wealthier

players, to use their enormous future growth in emissions as a bargaining chip, or to

have a seat at the table to limit their vulnerability to sea-level rise and other climate

impacts. Keohane & Victor, Cooperation and Discord in Global Climate Policy,

supra note [19].

209

Keohane & Oppenheimer, supra note [19], at 145 (explaining that

aggressive action on climate mitigation “will be difficult for democratic publics and

unpopular with authoritarian leaders striving to gain in wealth and power. States will

therefore seek when possible to employ bargaining power to shift these costs onto

others.”).

210

See, e.g., VICTOR, GLOBAL WARMING GRIDLOCK, supra note [32] at 22-24

(discussing alternatives to the UNFCCC climate negotiations).

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52 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

alternatives could include negotiating GHG reductions through what David

Victor has called “clubs” of nations, to avoid the need to reaching consensus

among more than 180 parties.

211

Parties within a negotiating club might make

aggressive offers to each other that are contingent on similar offers from other

members, and they could combine these offers with strict verification

measures.

212

Parties might also turn to trade sanctions, border taxes, or

bilateral financial assistance to induce other parties to take more ambitious

reductions.

213

Breakup could be sparked both by geopolitical events exogenous to

the treaty and by some of the internal fractures and stressors documented in

Part II.

The exogenous events could include war or global economic

recession that would divert the attention of governments and damage the

prospects for long-term cooperation. Breakup could also occur if

governments perceive that the effects of climate change (such as intense heat

waves, flooding, ice-sheet breakup, crop loss, or mass migrations) are

becoming intolerable. With a series of such events, committed parties might

perceive that some more aggressive structure is needed than the voluntary

system of pledge and review under the Agreement. Such events would

highlight for the world that the slow pace of reductions under the Paris

Agreement, and its voluntary architecture, are not up to the challenge of

addressing climate disruption.

214

Longstanding internal fractures, left unresolved at Paris, could also

re-emerge in the 2020s to derail the Agreement. In my view, the issue that is

most likely to derail the Paris Agreement is grievances over burden-sharing

and equity. When it becomes clear that major emitting nations are not on

track to achieve their NDCs and that second- and third-round NDCs are not

sufficient keep warming to less than two degrees Celsius, let alone 1.5

degrees Celsius, burden sharing and equity will become flashpoints of

dissension and conflict.

The issue of how to allocate the burden of reducing emissions has

been controversial at least since 1992, when the United Nations Framework

Convention on Climate Change assigned different responsibilities to

developed and developing states.

215

The term adopted for this bifurcation of

211

Id.

212

Id.

213

See Flannery et al., supra note 14.

214

See Oran R. Young, supra note [12] at 124, 131 (noting that public arousal

around climate change would increase dramatically if there is “some sort of climate

shock that jolts wide swaths of the public into taking climate change seriously.”).

215

Annalisa Savaresi, The Paris Agreement: A New Beginning?, 34 J. ENERGY

& NAT. RESOURCE L. 16 (2016) (describing the different treatment of developed and

developing nations under the UNFCCC and the Kyoto Protocol).

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PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

responsibility in the 1990s was “common but differentiated responsibility.”

216

Differentiating responsibility for climate change, with developed nations

bearing most of the burden of emissions reductions, was crucial for securing

participation by the developing world in any kind of climate change

regime.

217

In the view of developing nations, wealthy nations had to

undertake the lion’s share of emissions reductions because of their historic

responsibility for the problem and their greater financial capacity.

218

Precisely

how much of the GHG reduction effort should be undertaken by developed

countries versus developing countries has been a contentious debate for a

generation.

219

Cognizant of the polarizing nature of these burden-sharing and

equity issues, the parties chose a completely different structure for the Paris

Agreement: they “self-differentiated.”

220

During the Paris talks, parties

punted on the question of an equitable allocation of emission reduction

obligations and instead determined for themselves how much mitigation

effort was appropriate for their national circumstances, with no

internationally-agreed allocation. Although the Agreement mentions the

principle of common but differentiated responsibility,

221

discussions of

concrete allocation rules for the shared carbon budget were deemed off the

216

Framework Convention on Climate Change, concluded 9 May 1992, entered

into force 21 March 1994, 1771 UNTS 107 (1992), Art. 3.

217

Justin Lee, Rooting the Concept of Common but Differentiated

Responsibilities in Established Principles of International Environmental Law, 17

VT. J. ENVTL. L. 27, 32 (2015); Rowena Maguire, The Role of Common But

Differentiated Responsibility in the 2020 Climate Regime, 7 CARBON & CLIMATE L.

REV. 260, 264 (2013).

218

Justin Lee, supra note [217], at 34 (2015).

219

Alex Wang, Regulating Domestic Carbon Outsourcing: The Case of China

and Climate Change, 61 UCLA L. REV. 2018, 2035 (2014); Fabio Morosini, Trade

and Climate Change: Unveiling the Principle of Common but Differentiated

Responsibilities from the WTO Agreements, 42 Geo. WASH. INT’L L. REV. 713

(2010).

220

Lavanya Rajamani, Differentiation in a 2015 Climate Agreement, CTR. FOR

CLIMATE & ENERGY SOLUTIONS 2 (2015),

https://www.c2es.org/docUploads/differentiation-brief-06-2015.pdf.

221

Paris Agreement Art. 2 (“This Agreement will be implemented to reflect

equity and the principle of common but differentiated responsibilities and respective

capabilities, in the light of different national circumstances.”).

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54 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

table at Paris.

222

The voluntary system of self-differentiation was essential to

winning agreement at Paris, yet it meant sidelining and postponing the most

contentious issues.

223

To assert that Paris has permanently side-stepped acrimonious

debates over burden-sharing, just distribution, and equity, however, is “naïve

and wishful thinking.”

224

These long-standing fractures will come roaring

back this decade. By the mid-2020s, an implicit allocation of effort, evident

in the NDCs, will become clear to all the parties, and tensions over fair

distribution of the mitigation burden will likely surge as parties collectively

overshoot the trajectory toward the two-degree goal.

225

Will the parties continue to postpone specifying a plan for who has

to take action to close the emissions gap, even as the window to achieve the

two-degree goal is about to close? And will parties stand by the treaty even

as its “well below” two-degree goal becomes unattainable? In the face of a

lack of allocation rules, states may resist making second- and third-round

NDCs until the major emitters ramp up emissions cuts. For the Paris

Agreement to hold together in the long term, the distribution of burdens

represented in the NDCs must be perceived by most states as fair.

226

If not,

parties may exit.

It is hard to predict what would lie on the other side of a Breakup

scenario. If Breakup unfolds, committed governments may scramble for

some alternative mechanism to drive emissions reductions as climate impacts

become even more severe. Governments might return to a top-down climate

architecture with enforceable targets and timetables and a clear allocation of

effort, as under the Kyoto Protocol, or perhaps they may seek to amend the

Paris Agreement itself to specify an allocation of effort.

227

By the end of the

222

Justin Gillis, Paris Talks Avoid Scientists’ Idea of ‘Carbon Budget,’ N. Y.

TIMES, Nov. 28, 2015, https://www.nytimes.com/2015/11/29/science/earth/paris-

climate-talks-avoid-scientists-goal-of-carbon-budget.html?mcubz=0.

223

Falkner, British J. of Intl. Relations, supra note [105] at 275 (“the new

bottom-up structure [of the Paris Agreement] avoids any attempt to resolve this core

distributional conflict.”).

224

Okereke & Coventry, Climate Justice and the International Regime: Before,

During, and After Paris, WIREs Climate Change (2016) [don’t have the exact page

number – quote is in last paragraph of article].

225

See Keohane & Oppenheimer, supra note [19], at 143 (noting that the

“climate problem is plagued by multiple difficulties in determining what is fair”).

226

Joseph E. Aldy, Evaluating Mitigation Effort: Tools and Institutions for

Assessing Nationally Determined Contributions, HARVARD PROJECT ON CLIMATE

AGREEMENTS 7 (2015) (“When most large emitters perceive the climate change

regime as fair, there is at least the possibility of countries and groups of countries

increasing their mitigation contributions over time.”).

227

See, e.g., DAVID VICTOR, GLOBAL WARMING GRIDLOCK, supra note [32] at

22-24.

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PARIS AGREEMENT: BREAKDOWN OR BREAKUP ?

2020s, the current Paris Agreement may prove to be a temporary way-station

on the road to a more durable and binding agreement.

Far from solving intractable collective action problems and divisions

over burden-sharing, the Paris Agreement might just have papered them over

for a while. These divisions will re-emerge when the needed emissions

reductions become steeper. Breakup—the total collapse of the Paris

Agreement—is a plausible outcome of these conflicts.

CONCLUSION

The Paris Agreement followed twenty years of frustrating climate

talks with little progress, and it has to be evaluated against that backdrop. The

shift to a voluntary pledge and review system was the crucial change in policy

architecture that allowed consensus to be reached at Paris, surmounting

policy deadlock. Now that the Agreement is in its implementation phase,

however, the voluntary structure, lack of sanctions, and lack of benchmarks

for allocating effort will likely hinder further cooperation and reciprocity.

States will continue to submit NDCs that reflect their self-interest, but these

NDCs will in all likelihood be collectively insufficient to close the emissions

gap and keep the world on a trajectory to avoid warming beyond two degrees

Celsius.

The Paris Agreement is not unique in being fragile and susceptible

to a downward spiral. Most multilateral treaties designed for long-term

cooperation are prone to defections, free riding, and internal fractures.

228

an anarchic international system with no hegemon and no sovereign

enforcement power, it is difficult to bring nations together in consensus and

then sustain cooperation over time.

229

Under the Paris Agreement, however,

Breakdown and Breakdown are not just theoretical possibilities. They are

plausible near-term outcomes. Given the stressors on the Agreement that

have emerged since 2015, especially President Trump’s withdrawal

announcement and the likely shortfall in states’ progress toward their own

voluntary NDCs, it is now foreseeable that the ratchet mechanism of the

Agreement will stall.

A downward spiral of dissension, dysfunction, and disengagement

is a plausible future for the Paris Agreement, and Breakdown or Breakup may

228

Keohane & Victor, Cooperation and Discord, supra note [19] at 2

(discussing other multilateral regimes such as the World Trade Organization and the

Montreal Protocol).

229

Id.

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56 ECOLOGY LAW QUARTERLY (forthcoming Dec. 2019)

unfold within the next decade. Such outcomes would be disastrous and

threaten the habitability of many parts of the planet. To avoid these outcomes,

governments must show far more political will, investment, and sacrifice than

they have expended so far to address climate change.

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