Trump Quietly Accepts an Obama-Era Climate Deal

The Trump administration appears to be quietly accepting an Obama-era international climate change deal.

A career government official, State Department Principal Deputy Assistant Secretary Judy Garber, confirmed last week during a speech to diplomats at a Montreal Protocol gathering that the Trump administration won't run away from the deal finalized last year in the Rwandan capital known as the Kigali Amendment. Under that deal, the U.S. government would work globally to limit refrigerants and coolants that greatly contribute to climate change.

She signaled that the process might be a slow one. Rather than setting a timeline for the administration to ask the Senate for its approval—as would almost certainly be required for the legally binding amendment to the ozone treaty—Garber stated that her agency had "initiated the process to consider U.S. ratification."

Still, her approved remarks were viewed as a ringing endorsement of Kigali, a climate change issue that has seemed to fly under the radar in this administration. It's a notable contrast to the administration's public rebuke of the Paris emissions treaty, and the suggestion that the United States might ratify the deal was met with applause from industry groups and environmentalists—even though the administration isn't trumpeting its climate impacts.

Garber called the Kigali Amendment a "pragmatic and balanced approach" to limiting hydrofluorocarbons (HFCs), a class of climate superpollutants that could contribute a dangerous half-degree Celsius to warming. But she skirted the issue of climate change while touting President Reagan's role in the underlying treaty.

"When he signed the Montreal Protocol, President Reagan said, and I quote: 'The Montreal Protocol is a model of cooperation. It is a product of the recognition and international consensus that ozone depletion is a global problem, both in terms of its causes and its effects,'" she said. Reagan signed the agreement in 1987.

HFCs slightly contribute to the depletion of the ozone layer in Earth's stratosphere, but the amendment targets them mostly for their climate effects.

Industry and environmentalists, who have jointly pressed for ratification of the long-sought amendment, were delighted with Garber's words.

"They don't have to talk about climate," said Durwood Zaelke, founder and president of the Institute for Governance & Sustainable Development. The U.S. heating and cooling industries have backed the amendment to phase down HFCs, after years of preparing alternatives, and Zaelke said the State Department was right to focus on the trade and competitiveness benefits that track with Trump administration priorities. He called Garber's remarks an encouraging sign.

"They kept on the path started by Reagan and [British Prime Minister Margaret] Thatcher 30 years ago," he said. "They didn't step off. They could have stepped off."

"I was very heartened," said Francis Dietz of the Air Conditioning, Heating and Refrigeration Institute. Industry has been communicating its support for the Kigali deal to the administration for months, and Dietz took Garber's words as affirmation that the amendment wouldn't run afoul of the White House.

"It does seem to be, at least at this point in time, that people are singing from the same sheet of music," he said.

The Kigali Amendment commits the United States and other developed nations to begin cutting the production and use of HFCs in 2019, when the deal takes effect for countries that have ratified it. Dietz said U.S. industry would meet the relatively modest first reduction targets without any new regulation. But longer-term phase-downs could require domestic policy, and the U.S. Court of Appeals for the District of Columbia Circuit complicated that picture in August when it killed an Obama-era rule that the Trump administration defended.

Still, some question whether the ruling will withstand appeal, and there are other avenues to reduce HFCs under the Clean Air Act and the Toxic Substances Control Act if it does stand.

"We are confident as an industry that there's a path forward. Even if the D.C. Circuit opinion were to stand, we're still confident that a path forward can be found to implement Kigali, absolutely," said Dietz.

But domestic implementation is likely one of the issues the State Department is now addressing with agencies including U.S. EPA and the Commerce Department in interagency discussions that it says are now underway. If administration lawyers determined that current domestic law did not allow EPA to regulate HFCs, the administration might have to appeal to Congress to pass climate-related legislation—a heavy lift in the current political atmosphere.

The State Department also has to determine whether it must ask the Senate for its advice and consent or whether it can simply join Kigali as an executive agreement. But four previous amendments to the ozone treaty have received Senate votes, and skirting Senate consent now would be an unusual move, especially given the intense GOP criticism heaped on the Obama administration for joining the Paris climate agreement via executive authority.

"I think there are senators on both sides of the aisle who have been eager for the Senate to reassert its constitutional prerogative in a way that helps U.S. industry," said Paul Bledsoe, an energy and climate lecturer at American University.

But the amendment is unlikely to travel to the Senate anytime soon. The United States took two to four years to ratify previous amendments. And its proponents say that while they would welcome a speedy ratification, a moderate delay wouldn't matter much. The amendment has already been ratified by 20 countries—meaning it has met the necessary threshold of support to enter into force in January 2019, and U.S. manufacturers are poised to supply alternatives.

"Maybe they submit this in a year. It doesn't matter. Maybe they submit it in two years," said Zaelke.

Jennifer Haverkamp, the former assistant secretary of State for oceans and international environmental and scientific affairs under Obama who negotiated Kigali, said the extra time could help industry representatives and other advocates drum up the two-thirds support the amendment would need for a Senate ratification vote.

"There aren't reasons to rush it, which means it can be a thoughtful process that includes building the necessary understanding and support on [Capitol Hill] for it to go through smoothly," she said.

Sarah Hunt of the American Legislative Exchange Council said that the Kigali Amendment—unlike the Paris deal—is legally binding.

"This creates a strong argument that U.S. Senate ratification of Kigali is required by U.S. treaty ratification law," she said. "Because the most recent NASA research shows that the HFCs phased out by Kigali contribute to ozone depletion, U.S. policymakers should resist playing politics with ozone layer protection by turning a Kigali ratification vote into a referendum on climate policy."

'The one that the Trump administration didn't notice'

For now, the Kigali Amendment seems to be skating under the radar in the Senate, where members are focused on tax legislation.

In a brief exchange on an elevator packed with reporters, Sen. Bob Corker (R-Tenn.), chairman of the Foreign Relations Committee, appeared distracted when asked about the amendment. "I'm sorry," he said, adding that he couldn't answer the question. "My mind's in another place."

Sen. Todd Young (R-Ind.), the Foreign Relations subcommittee chairman who would be responsible for ratification, said he was unaware of the amendment.

The panel's ranking member, Sen. Ben Cardin (D-Md.), who traveled to Bonn, Germany, earlier in the month to attend U.N. climate talks, said he wasn't aware of any strategy to bring the amendment to the floor of the Senate.

Sen. Chris Coons (D-Del.), a Foreign Relations Committee member, was surprised when asked about HFCs instead of tax policy. He said he would vote to ratify but wasn't sure of his colleagues.

"I don't have a good read on whether or not we can act in a responsible, bipartisan way to strengthen the Montreal Protocol," he said in an interview. "I do think it is something where we can and should move forward on scientifically based policy that actually advantages American manufacturers and helps fight global warming."

Coons added, "It's the sort of thing that should get bipartisan support."

In an interview, Sen. Sheldon Whitehouse (D-R.I.), perhaps the chamber's most vocal advocate for climate policy, said the White House seems to have let Kigali slip past. "It's the one that the Trump administration didn't notice," Whitehouse said. "What?" he said, laughing and playing the role of the administration. "We let something environmental go?"

One possible explanation: "They probably didn't notice it was happening," he said. "Too busy tweeting about tax cuts."

Sen. Jim Inhofe (R-Okla.), the Senate's most outspoken climate skeptic, said he thought the State Department shouldn't submit Kigali. "I don't see any reason for it," he said.

Advocate in Trump White House

The White House has at least one prominent backer of the Montreal Protocol—White House energy adviser George David Banks, who was honored by the Obama administration in 2009 for work he did to broker an amendment phasing down HFCs under the treaty, which are both ozone-depleting and climate-forcing.

The White House has been in contact with the Alliance for Responsible Atmospheric Policy, an industry group that backs Kigali, for months, said Kevin Fay, the group's director.

"We've been discussing this with the administration since they got into office," Fay said by phone. "A big part of this is about educating people about the Montreal Protocol."

And John Hurst, vice president of government relations for Lennox International Inc., a Texas-based firm that makes heating and cooling systems for homes, said confusion in Washington sows doubt in the private sector. "Regulatory certainty is very important to us," Hurst said.

Avipsa Mahapatra, the climate campaign lead for the Environmental Investigation Agency, a nonprofit, said chemical companies and the companies that use those products—big-box stores that need refrigerants for cooling, for example—back the deal, too. "Even for this Senate, it's a no-brainer," Mahapatra said.

It's estimated that 500,000 U.S. jobs are tied to the HFC business, according to Zaelke of the Institute for Governance & Sustainable Development (Climatewire, Nov. 20). And firms have spent billions to come up with replacement chemicals that don't heat the planet.

"Global demand for our products continues to rise as countries begin to focus on adopting environmentally preferable and energy-efficient technologies to meet the goals of the Kigali Amendment," said a spokesperson for Honeywell International Inc., which wants to see the amendment ratified in the United States.

Reprinted from Climatewire with permission from E&E News. E&E provides daily coverage of essential energy and environmental news at www.eenews.net.