Petition for Writ of Certiorari — Kenneth Allen Pruitt, Petitioner v. Joseph R. Biden, Jr., President of the United States, et al.

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APPENDIX

Exhibit 1: January 31, 2023, CA5 three-judge

panel [STEWART, DUNCAN, and WILSON]

affirmation of District Court's dismissal of Petitioner

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Pruitt's claims for lack of standing

Exhibit 2: February 23, 2023, CA5 three-judge panel

[STEWART, DUNCAN, and WILSON]

denial of Petitioner Pruitt's FRAP 40 Petition

For Panel Rehearing

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Exhibit 3: 1997 Senate Resolution 98

(with 'yea' votes by Biden and by Kerry)

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Exhibit 4: 2015 "175-Memo" Memorandum

of Law by Government Counsel as

(Paris Climate Accord not binding for

emission reductions.........................................

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Exhibit 1

At January 31, 2023, CA5 three-judge panel

[STEWART, DUNCAN, and WILSON] affirmed the

district court's dismissal of Pruitt's claim for lack of

standing, as follows:

This appeal arises from Kenneth Pruitt's suit

against numerous Government entities for

allegedly exceeding their constitutional authority.

Because Pruitt has failed to establish standing, we

AFFIRM.

I. BACKGROUND

Pruitt filed a complaint followed by three motions

in federal district court in early 2021. Each of the

motions sought the same relief: the district court's

enjoinment of the Government's reentry into the

Paris Agreement! because it is a "treaty" that

requires the Senate's "advice and consent."

U.S. Const. Art. II, § 2, cl. 2. The district court

denied all three motions. To temporarily evade

review of his underlying complaint, he filed an

interlocutory appeal in this court. We ultimately

dismissed that appeal on jurisdictional grounds.

The Supreme Court subsequently denied his

petition for a writ of certiorari.

After Pruitt's failed appeals, the Government

filed a motion to dismiss his complaint because

he failed to establish standing. The district

court granted the Government's motion,

reasoning that Pruitt's status as a landowner

and taxpayer did not establish standing. Pruitt

timely appealed. He asks that we reconsider

standing and reach his arguments on the merits.

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II. STANDARD OF REVIEW

We review a district court's dismissal for lack of

standing de novo. See Cornerstone Christian Schs. v.

Uniu. Interscholastic League, 563 F.3d 127,133 (5th

Cir. 2009).

« This opinion is not designated for

publication. See 5TH CIR. R. 47.5.

1 The Paris Agreement is an

international compact by which participating

countries have agreed to combat climate

change.

III. DISCUSSION

Pruitt argues that the district court erred when it

dismissed his appeal for lack of standing because

the Government's reentry into the Paris

Agreement: (1) jeopardized his mineral interests in

property he owns in Nacogdoches County, Texas;

and (2) increased the taxes he owes to the federal

government, causing him great financial hardship.

We disagree.

"To establish standing, a plaintiff must

demonstrate (1) an injury in fact that is concrete

and particularized and actual or imminent; (2) is

fairly traceable to the defendants' actions; and (3) is

likely to be redressed by a favorable decision."

Baril/a v. City of Houston, 13 F.4th 427, 430 (5th

Cir. 2021) (internal quotations and citation

omitted). Regarding the particularized

requirement, the Supreme Court has explained

"that the injury must affect the plaintiff in a

personal and individual way." Ariz. Christian Sch.

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Tuition Org. v. Winn, 563 U.S. 125,134 (2011).

Accordingly, the Supreme Court has recognized

that "a plaintiff claiming only a generally available

grievance about government... does not state an

Article III case or controversy." Lujan v. Deft, of

Wildlife, 504 U.S. 555,556 (1992).

Here, Pruitt's argument that he is a taxpayer and

landowner fail to establish standing. First, his

taxpayer argument is unsustainable because it

conflicts with Supreme Court precedent. As the

Winn court explained, " [a]bsent special

circumstances ... standing cannot be based on a

plaintiffs mere status as a taxpayer." 563 U.S. at

134. That leaves his contention that his status as a

landowner establishes standing. But the injury he

purports to have-damage to his mineral interestsis neither concrete nor particularized. At best, his

alleged injury is a " generally available grievance"

about the impact of the President's decision to

reenter the Paris Agreement. See Lujan, 504 U.S.

at 556 (denying standing based on "nonconcrete

injuries" that "can be brought by anyone"). Put

differently, any landowner in the country could

claim the same injury that Pruitt does here. See id.

Because he has not demonstrated that the

Government's reentry into the Paris Agreement has

caused a concrete and particularized injury as to

him, he has failed to establish standing.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the

district court's dismissal of Pruitt's claim for lack

of standing.

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Exhibit 2

At February 23, 2023, a CA5 three-judge panel

[STEWART, DUNCAN, and WILSON] denied

Petitioner's FRAP 40 Petition For Panel Rehearing,

as follows:

IT IS ORDERED that the petition for rehearing is

DENIED.

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Exhibit 3

1997 Senate Resolution 98 (with 'yea' votes by

Biden and by Kerry)

https://www.congress.gov/bill/105th-congress/senatere solution/9 8/text

IN THE SENATE OF THE UNITED STATES

July 25, 1997

Mr. Byrd (for himself, Mr. Hagel, Mr. Hollings, Mr.

Craig, Mr. Inouye, Mr. Warner, Mr. Ford, Mr.

Thomas, Mr. Dorgan, Mr. Helms, Mr. Levin, Mr.

Roberts, Mr. Abraham, Mr. McConnell, Mr. Ashcroft,

Mr. Brownback, Mr. Kempthorne, Mr. Thurmond,

Mr. Burns, Mr. Conrad, Mr. Glenn, Mr. Enzi, Mr.

Inhofe, Mr. Bond, Mr. Coverdell, Mr. DeWine, Mrs.

Hutchison, Mr. Gorton, Mr. Hatch, Mr. Breaux, Mr.

Cleland, Mr. Durbin, Mr. Hutchinson, Mr. Johnson,

Ms. Landrieu, Ms. Mikulski, Mr. Nickles, Mr.

Santorum, Mr. Shelby, Mr. Smith of Oregon, Mr.

Bennett, Mr. Faircloth, Mr. Frist, Mr. Grassley, Mr.

Allard, Mr.Murkowski, Mr. Akaka, Mr. Coats, Mr.

Cochran, Mr. Domenici, Mr. Gramm, Mr. Grams,

Mr. Lott, Ms. Moseley-Braun, Mr. Robb, Mr.

Rockefeller, Mr. Sessions, Mr. Smith of New

Hampshire, Mr. Specter, Mr. Stevens, Mr. Lugar,

Mr. Reid, Mr. Bryan, Mr. Thompson, and Mr.

Campbell) submitted the following resolution; which

was referred to the Committee on Foreign Relations

July 21, 1997

Reported by Mr. Helms, without amendment

July 25, 1997

Considered and agreed to

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RESOLUTION

Expressing the sense of the Senate regarding the

conditions for the United States becoming a

signatory to any international agreement on

greenhouse gas emissions under the United Nations

Framework Convention on Climate Change.

Whereas the United Nations Framework Convention

on Climate Change (in this resolution referred to as

the "Convention"), adopted in May 1992, entered

into force in 1994 and is not yet fully implemented;

Whereas the Convention, intended to address

climate change on a global basis, identifies the

former Soviet Union and the countries of Eastern

Europe and the Organization For Economic Co­

operation and Development (OECD), including the

United States, as "Annex I Parties", and the

remaining 129 countries, including China, Mexico,

India, Brazil, and South Korea, as "Developing

Country Parties";

Whereas in April 1995, the Convention's "Conference

of the Parties" adopted the so-called "Berlin

Mandate";

Whereas the "Berlin Mandate" calls for the

adoption, as soon as December 1997, in Kyoto,

Japan, of a protocol or another legal instrument that

strengthens commitments to limit greenhouse gas

emissions by Annex I Parties for the post-2000

period and establishes a negotiation process called

the "Ad Hoc Group on the Berlin Mandate";

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Whereas the "Berlin Mandate" specifically exempts

all Developing Country Parties from any new

commitments in such negotiation process for the

post-2000 period;

Whereas although the Convention, approved by the

United States Senate, called on all signatory parties

to adopt policies and programs aimed at limiting

their greenhouse gas (GHG) emissions, in July 1996

the Undersecretary of State for Global Affairs called

for the first time for "legally binding" emission

limitation targets and timetables for Annex I

Parties, a position reiterated by the Secretary of

State in testimony before the Committee on Foreign

_ Relations of the Senate on January 8, 1997;

Whereas greenhouse gas emissions of Developing

Country Parties are rapidly increasing and are

expected to surpass emissions of the United States

and other OECD countries as early as 2015;

Whereas the Department of State has declared that

it is critical for the Parties to the Convention to

include Developing Country Parties in the next steps

for global action and, therefore, has proposed that

consideration of additional steps to include

limitations on Developing Country Parties'

greenhouse gas emissions would not begin until after

a protoco or other legal instrument is adopted in

Kyoto, Japan in December 1997;

Whereas the exemption for Developing Country

Parties is inconsistent with the need for global action

on climate change and is environmentally flawed;

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Whereas the Senate strongly believes that the

proposals under negotiation,

because of the disparity of treatment between

Annex I Parties and Developing Countries and

the level of required emission reductions,

could result in serious harm to the United

States economy, including significant job loss,

trade disadvantages, increased energy and

consumer costs, or any combination thereof;

and

Whereas it is desirable that a bipartisan group of

Senators be appointed by the Majority and Minority

Leaders of the Senate for the purpose of monitoring

the status of negotiations on Global Climate Change

and reporting periodically to the Senate on those

negotiations: Now, therefore, be it

Resolved, That it is the sense of the Senate that-(1) the United States should not be a

signatory to any protocol to, or other

agreement regarding, the United Nations

Framework Convention on Climate Change of

1992, at negotiations in Kyoto in December

1997, or thereafter, which would—

(A) mandate new commitments to

limit or reduce greenhouse gas emissions for

the Annex I Parties, unless the protocol or

other agreement also mandates new specific

scheduled commitments to limit or reduce

greenhouse gas emissions for Developing

Country Parties within the same compliance

period, or

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(B) would result in serious harm to

the economy of the United States; and

(2) any such protocol or other agreement

which would require the advice and consent of the

Senate to ratification should be accompanied by a

detailed explanation of any legislation or regulatory

actions that may be required to implement the

protocol or other agreement and should also be

accompanied by an analysis of the detailed financial

costs and other impacts on the economy of the

United States which would be incurred by the

implementation of the protocol or other agreement.

Sec. 2. The Secretary of the Senate shall transmit a

copy of this resolution to the President.

Sponsor:

Sen. Byrd, Robert C. [DWV1 (Introduced 06/12/1997)

Committees:

Senate - Foreign Relations

Committee Reports: S. Rent. 105-54

Latest Action:

Senate - 07/25/1997

Resolution agreed to in

Senate without amendment

and with a preamble by YeaNay Vote. 95-0. Record Vote

No: 205. (All Actions)

Roll Call Votes:

There has been 1 roll call

vote

Alphabetical by Senator Name (other names

redacted)

Biden (D-DE), Yea

Kerry (D-MA), Yea

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Exhibit 4

"175-Memo" by Government Counsel

MEMORANDUM OF LAW

Subject: Circular 175: Request for authority to sign

and accept the Paris Agreement

The accompanying memorandum from the

Office of the Special Envoy for Climate Change

(SECC) requests authority to sign and deposit an

instrument of acceptance to join the Paris

Agreement (“Agreement”), a multilateral agreement

negotiated under the UN Framework Convention on

Climate Change (“the Convention”). The United

States is a party to the Convention, having been one

of the first States to submit its instrument of

ratification. The Agreement will be open for

signature as of April 22, 2016, at UN Headquarters

in New York. In addition to signing, the United

States would subsequently deposit its instrument of

acceptance in order to join the Agreement. For the

reasons below, I conclude that there is no legal

objection to signing the Agreement and depositing

an instrument of acceptance (i.e., meaning that the

Agreement may be concluded as an executive

agreement).

The Agreement, among other things:

• establishes a long-term temperature goal of “well

below” 2 degrees Celsius, as well as a corresponding

greenhouse gas emissions aim of global peaking as

soon as possible;

• provides mechanisms to promote achievement of

the goal and aim, including, e.g., a collective

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stocktake every five years of progress in

implementing the Agreement and the subsequent

submission by Parties of their next round of

emissions targets;

• provides for Parties’ emissions targets to be

“nationally determined,” as opposed to negotiated or

allocated through some kind of agreed formula;

• raises the profile of adaptation to climate change

impacts;

• approaches “differentiation” among Parties in a

manner that stands in marked contrast to the Kyoto

Protocol, which contained commitments only for the

so called “Annex I” Parties (largely developed

countries); and

• establishes a robust transparency framework that

improves upon the existing system, including by

being substantively more rigorous in terms of

developing country reporting on emissions

inventories, reporting on implementation, and

review.

Legal Nature of the Agreement

As a whole, the Paris Agreement is a

“treaty” within the meaning of that term in

international law. This international law

conclusion, however, does not answer the separate

question, addressed later in this Memorandum, of

whether joining the Agreement would require the

advice and consent of the Senate. The individual

provisions of the Agreement are of a mixed legal

nature. While some provisions are legally

binding, many are not, and some (such as those in

which the Parties “recognize “ X or “are encouraged “

to do Y) read more like recommendations or

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exhortations found in a UN resolution than the

provisions of an international agreement. (As an

example, the entire adaptation article (Article 7)

contains only one provision setting forth a legally

binding obligation on Parties.)

This “hybrid” approach was necessary to bring

all countries on board and was actively supported

by the United States, including where legally

binding obligations would have been

impossible for the United States to fulfill

without additional legislation.

As ultimately adopted, the Agreement does

contain certain legally binding obligations that

would apply to the United States. As discussed

below, most involve the submission of information

(reporting, communicating) or are otherwise within

the control of the Executive Branch (such as

accounting for the emissions target). Some are

already U.S. obligations under the Convention (such

as finance). Importantly, there is no legal

obligation to either achieve or implement

emissions targets. The United States strongly

supported this approach, in the interest of promoting

both greater ambition (which might be suppressed

by targets of a legal nature) and broad participation,

including that of major developing countries. (China

and India would not have accepted legally binding

targets.) The approach was in stark contrast to the

approach taken when negotiating the Kyoto Protocol,

an agreement also under the Convention but one

that included emissions targets that were both

legally binding and not applicable to developing

countries.

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Relationship to the Convention

According to the negotiating mandate agreed

by the Convention’s Conference of the Parties in

Durban, South Africa, in 2011 (known as the

“Durban Platform”), the resulting agreement was to

be adopted “under the Convention.” Paragraph 1 of

the cover decision used to adopt the Agreement

reiterates this point.

While there is no definition of “under the

Convention,” the Convention contains three

provisions of relevance to any “related legal

instrument,” a phrase that would include the

Agreement:

• Article 2 of the Convention, which sets forth the

Convention’s objective, provides that the objective

applies to any related legal instrument. Consistent

with that directive, Article 2 of the Agreement sets

out a global temperature goal (“[hjolding the

increase in the global average temperature to well

below 2°C”) that gives greater specificity to the

Convention objective’s reference to avoiding

“dangerous anthropogenic interference with the

climate system.”

• Article 7 .2 of the Convention provides that the

Conference of the Parties (“COP”) is to “keep under

regular review” the implementation of any related

legal instrument it may adopt. As this directive

applies to the Convention’s COP, it did not need to

be reflected in the Agreement.

• Article 14 of the Convention, related to dispute

settlement, provides that its provisions apply to any

related legal instrument, unless that instrument

provides otherwise. While it was not legally

necessary to reference the Convention’s dispute

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settlement procedures in the Agreement in order for

them to apply, the Agreement nevertheless expressly

provides in Article 24 for their application mutatis

mutandis to the Agreement.

Beyond the three provisions noted, the

Convention does not address the terms of any legal

instrument thereunder. Some Parties asserted that

an agreement “under the Convention” required, for

example, the use of the Convention’s Annexes (which

set forth lists of Parties responsible for certain

commitments) or a bifurcated approach to the

provisions of the agreement (e.g., that “developed

country Parties” have different commitments from

“developing country Parties”). Such assertions were

strongly opposed by many other Parties, particularly

the United States, and were unsuccessful. The

Agreement contains no references to the Annexes

and, with the exception of the provisions related to

financial support, does not take a bifurcated

approach to commitments.

It should also be noted, while there was an

effort to call the Agreement a “protocol” and to adopt

it expressly pursuant to Article 17 of the Convention,

this effort was not successful. The instrument is

titled “Agreement,” and the authority of the

Convention’s COP for its adoption is unspecified. In

the U.S. view, the COP’s authority was provided in

Article 7 .2(m) of the Convention, which accords the

COP residual authority necessary to achieve the

objective of the Convention.

There was also an effort at one stage,

principally by China, to call the agreement an

“implementing agreement” under the Convention.

China noted that the U.S. proposal for an agreement

in 2009 was called an “implementing agreement,”

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and they hoped to use that term for the agreement to

be adopted in Paris. This approach, which the

United States opposed, was not adopted. Thus,

while, as noted below, the legally binding provisions

of the Agreement can be traced to, and elaborate,

various provisions of the Convention, it is not, as a

formal matter, an “implementing agreement” under

the Convention.

Domestic Form of the Agreement

The Supreme Court has consistently

recognized the authority of the President to conclude

international agreements without the advice and

consent of the Senate where the President’s own

constitutional authority, authority derived from

Congressional action, or some combination of them,

provides support for the President‘s actions. See

Weinberger v. Rossi, 256 U.S. 25, 30 n.6 (1982);

Dames & Moore v. Regan, 453 U.S. 654, 682-83

(1981); Belmont v. United States, 301 U.S. 324,33031 (1937); B. Altman & Co. v. United States, 224

U.S. 588,60 1 (1912). As detailed below, the

President’s independent authority under Article II,

Section 2 of the Constitution, together with the

authority given to him by statute, treaty, and other

indicia of Congressional support, as well as past

practice concerning similar agreements, provide the

President with ample authority to conclude the

Agreement as an executive agreement. If approved,

the Department of State will deposit an instrument

of acceptance signed by the Secretary of State to join

the Agreement; it would enter into force for the

United States, according to the Agreement’s terms ,

thirty days after at least 55 States representing 55%

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of global greenhouse gas emissions (as counted in

accordance with paragraph 104 of the decision

accompanying the Agreement) have deposited their

instruments.

1. Authority to Implement U.S. Obligations

under the Agreement

All U.S. legal obligations under the

Agreement can be implemented under existing

authority. As elaborated below, nearly all of them

can be implemented pursuant to the President’s

constitutional authority, as exercised by the

Secretary of State. Most obligations involve the

communication of information and discretionary

actions related to domestic action ( e.g., adaptation

planning) or international cooperation (e.g., public

education, technology). For those that require

legislative authority for implementation, such

authority already exists.

The core of the Agreement is not legally

binding, i.e., there is no legal obligation on

Parties to either achieve or implement their

emission targets (“nationally determined

contributions”). There is also no legal requirement

regarding the type/stringency of Parties’ targets.

The Agreement’s provisions that are legally

binding on the United States are as follows:

Mitigation:

• Article 4.2 requires each Party to prepare,

communicate, and maintain successive nationally

determined contributions (“NDCs” i.e., emissions

targets) over the course of the Agreement.

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• Article 4.2 also requires Parties to “pursue

domestic mitigation measures, with the aim of

achieving the objectives” of their NDCs.

• Neither sentence of Article 4.2 creates a legal

obligation to achieve or implement an NDC.

• In the first sentence, it is clear from the phrase “it

intends to achieve” that there is no legally binding

obligation to achieve mitigation targets. (The

United States proposed this language early on

in the process, and it was widely disliked

precisely because it made so clear that the

targets were not legally binding.)

• The second sentence requires a Party to pursue

mitigation measures, but without any requirement

to pursue particular mitigation measures or to

implement or achieve the target.

• Article 4.8 requires each Party to provide the

information necessary for clarity, transparency, and

understanding, when communicating its NDC.

• Article 4.9 requires each Party to communicate an

NDC every five years.

• Because the provision states that such

communication shall be made “in accordance with”

the decision of the Parties taken in Paris, paragraph

25 of the adopting decision, in which the Parties

decide that Parties “shall submit” future NDCs nine

to twelve months in advance of the relevant meeting

of Parties , is also legally binding.

• Article 4.13 requires Parties to account for their

NDCs so as to promote environmental integrity and

avoid double counting.

• Article 4.15 requires Parties to take into

consideration in the implementation of the

Agreement the concerns of Parties with economies

most affected by the impacts of response measures.

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Adaptation:

• Article 7.9 requires each Party, as appropriate, to

engage in adaptation planning processes and the

implementation of actions.

Support:

• Article 9.1 requires developed country Parties to

provide financial resources to assist developing

country Parties with both mitigation and adaptation,

in “continuation of their existing obligations under

the Convention.” (This commitment is a “collective”

one, as was made clear in the memorandum of law to

sign the Convention, as well as the transmittal

package to the Senate. Further, in the Convention

context, it has consistently been interpreted by the

United States and other Parties as a collective, not

individual, commitment.)

• Article 10.2 requires Parties (collectively) to

strengthen cooperative action on technology

development and transfer. Article 10.2, as well as

Article 12 described below, are obligations to

cooperate and thus are indeterminate obligations for

which Parties cannot be held to specific results.

Reporting/Review:

• Article 13. 7 requires each Party to regularly

provide a greenhouse gas inventory and the

information necessary to track progress in

implementing and achieving its nationally

determined contributions.

• Articles 9.5, 9.7, and 13.9 require developed

country Parties to communicate various types of

information concerning financial, technology

transfer, and capacity-building support.

• Article 11.4 requires all Parties to regularly report

on any actions or measures they take to enhance the

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capacity of developing countries to implement the

Agreement.

• Article 13.11 requires each Party to participate in

a facilitative, multilateral consideration of, inter

alia, the implementation/achievement of its

mitigation target.

Other:

• Article 12 requires Patties (collectively) to

cooperate to enhance climate education, training,

public awareness, public participation , and public

access to information. As is the case with Article 10.2

described above, this is an indeterminate obligation.

The United States would be in a position to

implement each of these legally binding obligations

under the Agreement under existing domestic

authority:

• Eight of the obligations (Article 4.2, sentence one;

Article 4.8; Article 4.9; Article 11 .4; Article 13. 7;

Article 9.5, Article 9.7; Article 13.9) are procedural

and involve the repotting/submission/

communication of information by the Executive

Branch. These obligations do not require legislative

authority but rather can be carried out under the

President‘s authority to conduct foreign affairs

under Article II of the Constitution, as exercised by

the Secretary of State under 22 U.S.C. 2656.

The United States already has substantial reporting

requirements under the Convention, as elaborated

by decision s of the Convention ‘s Conference of the

Parties. Article 12 of the Convention in particular

requires reporting, inter alia, on mitigation

(greenhouse gas inventories, mitigation policies and

measures) and on actions taken with respect to

finance and technology support to developing

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countries. One example of reporting under Article 12

is the recently submitted 2016 U.S. Biennial Report.

The Agreement‘s reporting requirements elaborate

upon these

existing obligations.

• The United States would implement any

additional reporting requirement s under the

Agreement pursuant to the same authorities.

• The obligation in the second sentence of Article

4.2, to “pursue domestic mitigation measures,” can

be implemented by the Executive Branch under

existing authorities. This obligation is already being

implemented, given that it is an existing

U.S. obligation under Article 4.1(b) of the

Convention. (“All Parties ... shall. .. [formulate ,

implement, publish and regularly update

national... programmes containing measures to

mitigate climate change .... “)

• Statutory authorities include, e.g., the Clean Air

Act ( 42 U.S.C. 7401 et seq.) and the Energy Policy

and Conservation Act (42 U.S.C. 6291-6317) , and

regulations thereunder.

• There is ample existing regulatory authority to

pursue mitigation measures, as evidenced by the

numerous regulatory actions that have already been

taken to control U.S. greenhouse gas emissions,

including, e.g.:

• Under Section 202 of the Clean Air Act (42 U.S.C.

7521), EPA adopted standards controlling C02,

N20, and CH4 for light-duty vehicles for model

years 2012-2025 and for heavy-duty vehicles for

model years 2014-2018.

• Acting pursuant to its authority in 49 U.S.C.

32902, the Department of Transportation has

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adopted fuel economy standards for passenger cars

and light trucks, as well as for medium- and

heavy- duty vehicles. The authority to regulate the

former types of vehicles was provided in the Energy

Policy and Conservation Act (1975) and to regulate

the latter types was provided in the Energy

Independence and Security Act (2007).

• Under the Energy Policy and Conservation Act (42

U.S.C. 629 1-6317), the Department of Energy has

finalized multiple measures addressing building

sector emissions, including energy conservation

standards for 29 categories of appliances and

equipment.

• Under Section 612 of the Clean Air Act (42 U.S.C.

767 lk), through the Significant New Alternatives

Policy program (SNAP), EPA has approved more

climate-friendly alternatives to ozone depleting

substances for use in lieu of high global warming

potential HFCs in certain applications . Further, it

has listed certain high GWP HFCs as unacceptable

in specific applications.

• Similar to the reporting obligations, the obligation

in Article 4.13 to “account” for NDCs so as to

promote environmental integrity/avoid double

counting (e.g., count emissions/removals in specified

ways) can be carried out by the Executive Branch

without the need for additional authority. As under

the Convention, the Executive Branch will submit

periodic reports on the progress the United States is

making towards achieving its emissions target. It

will include /exclude emissions and removals of

greenhouse gas in a manner that is reflective of any

binding rules agreed pursuant to this provision.

• The obligation in Article 4.15 to take into

consideration the concerns of Parties with economies

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most affected by the impacts of response measures,

particularly developing country Parties, is

discretionary and can be implemented by the

Executive Branch without the need for additional

authority.

• This obligation is nearly the same as existing U.S.

obligations under Articles 4.8 and 4.10 of the

Convention:

• Article 4.8 of the Convention provides: “In the

implementation of the commitments in this Article,

the Parties shall give full consideration to what

actions are necessary under the Convention,

including actions related to funding, insurance and

the transfer of technology, to meet the specific needs

and concern s of developing country Parties arising

from ... the impact of the implementation of response

measures ... . “

• Article 4.10 of the Convention provides: “The

Parties shall...take into consideration ... the

situation of Parties, particularly developing country

Parties, with economies that are vulnerable to the

adverse effects of the implementation of measures to

respond to climate change.”

• The obligation in Article 7.9 to engage in

adaptation planning processes and implementation

of actions is discretionary (“as appropriate”). It can

be implemented by the Executive Branch under

various existing statutory and Executive Branch

authorities, e.g., the Coastal Zone Management Act

(Pub. L. 92-583); the Clean Water Act (33 U.S.C.

1251 et seq.); E.O. 13653: Preparing the United

States for the Impacts of Climate Change; E.O.

13690: Establishing a Federal Flood Risk

Management Standard and a Process for Further

Soliciting and Considering Stakeholder Input; E.O .

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13689: Enhancing Coordination of Federal Efforts in

the Arctic; and E.O. 13677: Climate-Resilient

International Development.

• This obligation is nearly the same as the existing

U.S. obligations under Article 4.1 of the Convention.

• Article 4.1 (b) of the Convention provide s: “All

Parties ... shall... formulate, implement, publish and

regularly update national and, where appropriate,

regional programmes containing ... measures to

facilitate adequate adaptation to climate change .... “

• Article 4.1(e) of the Convention provides: “All

Parties ... shall ... [c]ooperate in preparing for

adaptation to the impacts of climate change; develop

and elaborate appropriate and integrated plans for

coastal zone management, water resources and

agriculture, and for the protection and rehabilitation

of areas, particularly in Africa, affected by drought

and desertification, as well as floods .... “

• Article 9 .1 provides: “Developed country Parties

shall provide financial resources to assist developing

country Parties with respect to both mitigation and

adaptation in continuation of their existing

obligations under the Convention.” This obligation is

not only unquantified but, as noted above, applies

collectively to developed country Parties (i.e., not

individually to the United States). While not

required, U.S. support will be carried out through a

variety of means, including, e.g., direct bilateral

foreign assistance and contributions to various

multilateral trust funds managed by international

financial institutions. Legal authority for such

support varies depending on the specifics of the

support, but may include relevant appropria-tions

acts and the Foreign Assistance Act of 1961.

A24

• By linking the provision of financial resources to a

continuation of “existing obligations under the

Convention,” the provision makes clear that the

obligation of the United States (which, as noted, is

part of a collective obligation) goes no further than

existing U.S. financial obligations under the

Convention.

• Existing financial obligations under the

Convention are contained in Articles 4.3, 4.4, and, to

an extent, 4.5.

• Article 4.3 of the Convention provides: “The

developed country Parties ... shall provide new and

additional financial resources to meet the agreed full

costs incurred by developing country Parties in

complying with [certain reporting obligations]. They

shall also provide such financial resources ... needed

by the developing country Parties to meet the agreed

full incremental costs of [certain mitigation

measures].”

• Article 4.4 of the Convention provides: “The

developed country Parties ... shall also assist the

developing country Parties that are particularly

vulnerable to the adverse effects of climate change in

meeting costs of adaptation to those adverse effects.”

• Article 4.5 of the Convention provides: “The

developed country Parties ... shall take all

practicable steps to promote, facilitate, and finance,

as appropriate, the transfer of, or access to,

environmentally sound technologies and know-how

to other Parties .... “

• The obligation in Article 13.11 to participate in a

facilitative, multilateral consideration of the

implementation/achievement of its nationally

determined contribution can be implemented by the

Executive Branch pursuant to the President’s

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constitutional authority to conduct foreign affairs, as

exercised by the Secretary of State.

• The obligations in Articles 10.2 and 12 involve

unspecified collective “cooperation” with respect to

technology and public education, etc., respectively,

and can be implemented by the Executive Branch

under existing authorities, e.g., Section 204 of the

International Cooperation in Global Change

Research Act of 1990, Pub. L. 101-606 (Title II);

Section 102 (e) of the Global Change Research Act of

1990, Pub. L. 101-606; National Climate Program

Act, 15 U.S.C. Section 2904 (d); the Marine

Protection, Research and Sanctuaries Act, 33 USC

Sections 1442 (a) and (b); Section 103 of the Clean

Air Act, as amended, and Section 102(2)(F) of the

National Environmental Policy Act (which authorize

EPA to engage in and support various cooperative

technology transfer activities); the Coastal Zone

Management Act, 16 U.S.C. 1451 et seq. (which

provides NOAA authority to conduct a program of

technical assistance and management-oriented

research in coastal zone management in connection

with possible sea-level rise); and the Weather

Bureau Act, 15 U.S.C. 313a (which authorizes the

development of an international basic meteorological

reporting network in the Western Hemisphere and

the Arctic, including cooperative programs in and

with other countries).

It should be noted that the Agreement

includes several provisions that, while written in

mandatory terms (“shall “), do not apply to Parties

(either individually or collectively). Some apply to

institutions, e.g., directions to the Warsaw

Institutional Mechanism (Article 8), to the

Secretariat (Article 4.12), or to the COP meeting as

A26

the Parties to the Paris Agreement (throughout).

Others are written to provide an assurance in one

article that a particular issue is addressed in one or

more other articles, e.g. , Artie le 4.5 (“[s]upport shall

be provided ... “).

2. Statutory and Congressional Support

In addition to the President’s constitutional

authority, his authority to conclude the Agreement

as an executive agreement derives support from

statute and other Congressional actions. As

discussed above, multiple statutes provide the

authority necessary to implement many of the

obligations contained in the Agreement. In addition,

Congress has expressed support for international

engagement on environmental protection and on

climate change in a number of laws and other

actions detailed below.1

1 Congressional authorization for the President’s conclusion of

an international agreement may be either explicit or implicit.

As observed by a leading Congressional study of treaties and

international agreements conducted by the Congressional

Research Service for the Senate Committee on Foreign

Relations , “Congress has enacted statutes providing authority

in advance for the President to negotiate with other nations on

a particular matter. This authority may be explicit, or, in the

case of agreements concluded in conformity with a generally

enunciated congressional policy, implied from the terms of the

enactment. “ Treaties and Other International Agreements:

The Role of the United States Senate , 106th Con., 2d Sess., S.

Prt. 106-7 1 (2001), at 69. Sec also Restatement (Third) of

Foreign Relations Law, Section 303, cmt. E (Congress may

enact legislation that requires, or fairly implies the need for an

agreement to execute the legislation .”); Dames & Moore v.

Regan, 453 U.S. 654,668 (1981)( When the President acts

pursuant to an express or implied authorization from Congress,

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• The National Environmental Policy Act of 1969

contains a specific directive from Congress that, “to

the fullest extent possible,” “all agencies of the

Federal Government... shall recognize the

worldwide and long-range character of

environmental problems and , where consistent with

the foreign policy of the United States, lend

appropriate support to initiatives, resolutions, and

programs designed to maximize international

cooperation in anticipating and preventing a decline

in the quality of mankind ‘s world environment.” 42

U.S.C. 4332(2)(F).

• The Global Climate Protection Act of 1987

(amended in 1993), expresses strong Congressional

support for U.S. international engagement on

climate change, including, e.g., that U.S. policy

should seek to “work toward multilateral

agreements.”

• The Senate unanimously approved the Convention

in 1992. The Paris Agreement was adopted under

the Convention, and its purpose is directly linked to

the Convention. Specifically, Article 2 of the

Agreement makes clear, as an overarching matter,

that the Agreement is “enhancing the

implementation of the Convention , including its

objective.” Further, the specific provisions of the

Agreement are substantially similar to (in some

cases, extending Convention provisions that apply

only to developed countries to all countries),

elaborate, and/or cross-reference various provisions

in the Convention:

• Article 4.2 of the Agreement, which calls for the

periodic communication of nationally determined

he exercises not only his powers but also those delegated by

Congress.”)

A28

contributions (i.e., mitigation targets or other

measures), is substantially similar to Articles 4.1(b)

and 4.2(a) of the Convention . Article 4.1 (b) calls for

all Parties to formulate, implement, publish, and

regularly update, mitigation measures. Article

4.2(a), which applies only to developed country

Parties , calls for adopting mitigation measures and

communicating detailed information on such

measures.

• Article 4.8 of the Agreement calls for all Parties to

provide clarity in communicating their mitigation

targets /other measures. Article 4.2(b) and Article 1

2.2(a) of the Convention, which apply only to

developed country Parties, call for a “detailed”

description of such measures.

• Article 4.9 of the Agreement calls for all Parties to

communicate their mitigation targets /measures

every five years. This makes more specific the

obligation in Article 4.2 of the Convention (which

applies only to developed countries) to “periodically “

communicate their mitigation measures.

• Article 4.13 of the Agreement, which calls for

Parties to account for their mitigation targets

/measures, elaborates Articles 4.2(b) and 12.2 of the

Convention, which calls for developed country

Parties to communicate detailed information on their

mitigation measures.

• As explained above, Article 4.15 of the Agreement

is substantially similar to Articles 4.8 and 4.10 of the

Convention.

• As explained above, Article 7.9 of the Agreement is

substantially similar to Articles 4.1(b) and 4.1(e) of

the Convention.

• As explained above, Article 9.1 of the Agreement,

which calls for financial support from developed

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country Parties , by its terms goes no further than

existing financial obligations under Articles 4.3, 4.4,

and 4.5 of the Convention.

• Article 10.2 of the Agreement, which calls for

Parties to strengthen cooperative action on

technology development and transfer, is

substantially similar to Article 4.5 of the

Convention, which calls for developed country

Parties to take all practicable steps to promote the

transfer of technologies, as well as to support the

development of technologies of developing countries.

• Article 11.4 of the Agreement, which calls for all

Parties that are enhancing the capacity of

developing country Parties to communicate on these

actions, is substantially similar to Article 12.3,

which calls for developed country Parties to

communicate details of measures taken into

accordance with Article 4.5 (which includes

developing the capacity of developing countries). •

• Article 12 of the Agreement, which calls for

Palties to cooperate in relation to climate change

education and public awareness, is substantially

similar to Articles 4.1 (i) and 6 of the Convention,

which, respectively, call for Parties to promote and

cooperate on education, training , and public

awareness related to climate change, and lay out

specifics with respect to the implementation of

Article 4.1 (i).

• Article 13.7 of the Agreement, which calls for all

Parties to regularly provide information on their

greenhouse gas inventories and on their progress in

implementing and achieving their mitigation targets

/measures , is substantially similar to Articles 4.1 (a)

and 12.1 (a) of the Convention (which call for the

communication of greenhouse gas inventories) and

A30

Articles 4.2(b) and Article 12.2 (which, for developed

country Parties, call for the communication of

information on the implementation of mitigation

measures).

• Articles 9.5, 9.7, and 13.9 of the Agreement, which

call for developed country Parties to communicate

information on their provision and mobilization of

support to developing country Parties, elaborate

Article 12.3 of the Convention, which calls for

developed country Parties to communicate details of

measures taken to implement Articles 4.3, 4.4, and

4.5 (which address financial and other forms of

support to developing country Parties).

• Article 13.11 of the Agreement, which calls for

Parties to participate in a facilitative, multilateral

consideration of its implementation, elaborates

Article 10 of the Convention, which provides for the

Subsidiary Body on Implementation’s consideration

of information communicated by developed country

Palties concerning their implementation of

mitigation measures.

Finally, it should be noted that, while the

presence of legally binding emission targets would

not necessarily trigger the need for Senate advice

and consent (e.g., the Administration’s proposal in

2009 for an agreement with binding targets was

made in the context of having the U.S. inter­

national target track the domestic emissions cap

under the anticipated Waxman-Markey bill), the

absence of legally binding targets here is significant.

The legal character of emission targets was at the

heart of the Senate’s consideration of the Convention

in 1992.

A31

The Senate sought reassurance from the Executive

Branch that the emissions “aim” in the Convention

was not legally binding and expressed the view that

any future decision of the Convention’s Conference of

the Parties that included legally binding “targets

and timetables” would need to be submitted to the

Senate for advice and consent (Exec. Rept. 102-55, p.

14). During the ratification process, the Executive

Branch stated, in response to a question whether it

would submit a “protocol” with “targets and

timetables” (understood in that context to mean

legally binding targets) to the Senate , that it

“expected “ to send to the Senate any future

agreement with such targets and timetables (S.

HRG. 102-973, p. 106).

While this ratification history would not

legally compel Senate advice and consent even if the

Paris Agreement did contain legally binding targets,

the history indicates that the Senate had a

particular focus in terms of its role vis-a-vis future

agreements under the Convention. This focus is

bolstered by the complete absence of calls from the

Senate to have a role in the approval of the

Copenhagen Accord, which contained non-legally

binding targets. The fact that the Agreement

does not contain legally binding targets - and

this does not appear to be contested, even by

those advocating Senate approval - supports the

appropriateness of concluding the Agreement as an

executive agreement.

3. Past Practice/Precedent

The President’s authority to conclude the

Agreement as an executive agreement finds further

A32

support in past practice with respect to similar

agreements. The Supreme Court has cited Congress’

acquiescence in the President’s entry into prior

agreements as executive agreements as a relevant

consideration establishing his authority to enter into

subsequent similar agreements. See Dames & Moore,

453 U.S. at 682 ; American Insurance Assn. v.

Garamendi, 539 U.S. 396, 45 (2003).

In terms of past climate agreements, the

Executive Branch sent the Convention to the

Senate for its advice and consent to

ratification. (The memorandum of law in the

Circular 175 package to sign the Convention

declares that the Convention will be concluded

in this manner, but without analyzing whether

Senate approval was legally necessary.) The

Executive Branch did not send the Kyoto Protocol to

the Senate after its adoption because of, inter alia,

the absence of commitments for developing

countries. (Even if the Executive Branch had sent

the Kyoto Protocol to the Senate, it would be

distinguishable from the Paris Agreement, given,

among other things, the highly legally binding

nature of the Protocol, including its legally binding

emission targets.) The Copenhagen Accord, a

political rather than legal instrument, was not sent

to the Senate.

There are numerous examples of international

environmental agreements with legally binding

obligations - including obligations similar to those

contained in the Paris Agreement- having been

concluded as executive agreements, including, e.g .,

the Convention on Long-Range Transboundary Air

Pollution (“LRTAP”); the NOx Protocol to LRTAP;

the Heavy Metals Protocol to LRTAP; the Multi-

A33

Pollutant Protocol to LRTAP ; the U.S.-Canada Air

Quality Agreement; the OECD Decision of 2001 on

the control of transboundary movements of

hazardous wastes , and, most recently, the

Minamata Convention on Mercury:

o There is no perfectly analogous precedent to the

Paris Agreement. Among other things (such as that

the Agreement elaborates an existing treaty, as

discussed above), the precedents actually contain far

more substantive commitments than does the Paris

Agreement.

• In contrast to the Agreement, the LRTAP

Protocols, the Air Quality Agreement, and the

Minamata Convention all contain legally binding

constraints on emissions.

• The LRTAP Protocols contain specific, legally

binding emission limits on pollutants, as well as

legally binding obligation s with respect to, e.g.,

research, technology, and monitoring.

• The Air Quality Agreement contains specific,

legally binding reduction targets for emissions of

sulphur dioxide and nitrogen oxides, as well as

legally binding obligations with respect to,

e.g., environmental impact assessment and

compliance monitoring.

• The Minamata Convention contains not only

legally binding limits on mercury emissions but also

legally binding obligation s with respect to, inter

alia, the mining of mercury, the import and export of

mercury , the manufacture of mercury, and the

treatment of mercury waste.

• The OECD Decision contains legally binding

obligations regarding the export and import and

specified hazardous waste.

A34

o As noted above, the main obligations in the Paris

Agreement (setting aside those that repeat

Convention obligations or call for unspecified

forms of cooperation) involve reporting. The above

agreements all contain legally binding reporting

requirements , e.g., Article 21 of the Minamata

Convention, Article VII of the Air Quality

Agreement, and Article 7 of the LRTAP MultiPollutant Protocol.

While there are several examples of

environmental agreements having gone to the

Senate, many are distinguishable in terms of the

nature of their legally binding provisions and/or the

need for new legislation to implement U.S.

obligations. For example, the Basel Convention on

Transboundary Movements of Hazardous Wastes

and their Disposal, the Rotterdam Convention on the

Prior Informed Consent Procedures, and the

Stockholm Convention on Persistent Organic

Pollutants all contained extensive substantive legal

obligations and required new legislative authority to

carry out U.S. obligations. Moreover, unlike the

Paris Agreement, these agreements were not

concluded under existing treaties to which the

Senate had already given its advice and consent.

In sum, there is ample precedent for treating

an agreement such as the Paris Agreement as an

executive agreement. Congress’ acquiescence in this

past practice provides further support for the

President’s authority with respect to entering into

the Paris Agreement.

4. Counter-Arguments on Domestic Form

A35

The arguments that have been advanced in

support of the necessity for Senate approval are

unpersuasive:

• It has been argued, for example, that the inclusion

of any legally binding provisions in an agreement

means it requires Senate approval.

o This is of course erroneous. There is no

constitutional basis for the assertion and, in fact, the

Executive has routinely entered into executive

agreements with legally binding provisions

throughout U.S. history.

• It has been argued that the Agreement sets up an

expectation that the United States will undertake

more and more ambitious targets indefinitely and

that, even if such expectation is not legally binding ,

the Senate should be a part of the decision to create

such an expectation.

o Political expectations are often set in motion by

instruments that do not require Senate approval,

e.g., the Helsinki Accords, the Copenhagen

Accord, and the Washington Nuclear Security

Summit Communique.

• It has been argued that Article 4.3 of the

Agreement legally binds Parties to take on more and

more ambitious targets over time, which in turn

requires the Agreement to get Senate approval.

• Article 4.3 provides: “Each Party’s successive

nationally determined contribution will represent a

progression beyond the Party’s then current

nationally determined contribution and reflect its

highest possible ambition, reflecting its common but

differentiated responsibilities and respective

capabilities, in the light of different national

circumstances.”

A36

• The provision in question is not legally binding.

While the United States sometimes uses the verb

“will” in its practice to signify a binding obligation

and seeks to avoid its use in non-binding situations

to avoid confusion, there was no intent in this case

to create a binding obligation.

• Not only do most countries generally consider

“will” to be non-binding, but, in this particular

context, the negotiating States were almost

uniformly opposed to a legally binding obligation.

They were confused about the exact meaning of

“progression,” which made them nervous about what

they would be undertaking; in addition, they were

concerned that a binding obligation to “progress”

targets over time would result in suppression of

ambition. We do not have to reach the issue here

whether a legally binding provision to “progress”

targets would affect the need for Senate approval.

• It has been asserted that the Executive Branch

committed to send up any future agreement with

“targets and timetables.”

• As noted above, the phrase “targets and

timetables” had the meaning at the time of legally

binding targets. Further, as noted, the

Administration at the time did not commit to

sending up a future agreement, even it if had been a

“protocol” that contained “targets and timetables.”

• It has been asserted that the Convention was

approved by the Senate and that, therefore, this

Agreement needs to be a treaty as well.

• This is not accurate as a matter of law. Just

because an agreement was approved by the Senate

does not mean that any agreement thereunder needs

to be a treaty; it depends upon its form and content.

The fact that the Senate has already approved an

A3 7

agreement can, as in this case, actually provide

support for the conclusion of an executive agreement

because the subsequent agreement is within the

scope of, and advances the object and purpose of, the

original agreement.

Conclusion

Based on the above, there is no legal objection

to signature of the Agreement. Further, the United

States may join the Agreement as an executive

agreement (as opposed to a treaty requiring the

Senate’s advice and consent) as a matter of domestic

legal form. If approved, the Department of State

would deposit an instrument of acceptance to join

the Agreement. It would enter into force for the

United States, according to Alticle 21 of the

Agreement, on the thirtieth day after 55 Parties to

the Convention accounting in total for at least an

estimated 55% of total global GHG emissions have

deposited their instruments of ratification,

acceptance, approval, or accession.

/s/ [name redactedl

Legal Advisor