Tag Archives: Executive order

New Trump Executive Order Reverses Obama-Era Climate Change Policies

Alicia Nicholls

Less than one hundred days into his presidency, President Donald Trump has started a major rollback of Obama-era climate policies. Surrounded by an ensemble of coal miners, the US President today signed his Executive Order on Promoting Energy Independence and Economic Growth.  Touted as necessary to liberalise energy production, promote economic growth and job creation, the Trump Executive Order takes aim at several executive actions implemented by his predecessor, President Barack Obama, as part of the US’ then response to the global climate change challenge.

For fellow pro-environmentalists today’s executive order is a blow to the global climate change fight and a sad confirmation of the policy change which Trump had promised. Why? Firstly, the US is the world’s largest emitter of greenhouse gases (16% according to 2015 figures), which means US action or inaction on climate change has a non-negligible impact on global efforts to reverse course before it is too late. Secondly, environmental regulatory rollback by the US could provoke a domino effect on other large emitters who may decide to rollback their own so-called ‘job killing’ environmental regulations in order to be competitive. Thirdly, US climate change inaction is not just a blow for small island developing States which are the most vulnerable to the adverse effects of climate change, but it further endangers those parts of the US which are feeling the ravages of climate change, such as sea level rise and more powerful storms.

The name  of the executive order is a misnomer as it does nothing to promote energy independence. Instead, it mandates, inter alia, departments and agencies to immediately review, suspend, revise or rescind existing regulations that “potentially burden the development or use of domestically produced energy resources”. It rescinds Certain Energy and Climate-Related Presidential and Regulatory Actions, including a 2013 executive order urging the federal government to prepare for the impact of climate change and a 2013 presidential memorandum on Carbon Sector Carbon Pollution Standards. It also lifts moratoria on Federal land coal leasing activities. His Head of the Environmental Protection Agency (EPA), Scott Pruitt, a known climate sceptic, reportedly hailed the regulatory rollback as “pro-jobs and pro-environment”.

This 360 degree reversal of US Climate Change policy comes days after President Trump’s proposed Budget which slashed budgetary funding for the EPA by 31%, but saw an increase in military spending.

Though denounced by environmentalists, the executive order has been praised by the US Coal Industry. Mr. Trump constantly blamed President Obama’s Clean Power Plan for the loss of coal mining jobs. However, though it is true that coal mining jobs have been on the decline in the US, most have been lost to automation as well as the shift to cleaner energy sources as opposed to clean energy regulations. Therefore, even some coal industry leaders, who have denounced climate action, have noted that coal jobs may not be coming back, regulatory rollback or not.

Moreover, the equation of climate change regulation with job losses is a false comparison as it ignores the growth not just in renewable energy industries and the green economy, but also specifically of green jobs and green goods and services.

President Trump is currently the only major world leader to deny the anthropogenic origin of climate change, and while he has often vacillated in his views on other subjects, on climate change he has been a consistent denier. Almost as a warning salvo that it would not be business as usual,  the Whitehouse.gov site had been scrubbed of any information relating to climate change immediately after President Trump’s inauguration.

Mr. Trump was also a fierce critic of the Paris Climate Agreement which had been concluded and signed by over 190 countries at the UNFCCC’s 21st Conference of the Parties (COP 21). Parties to the Agreement, which the US had ratified under President Obama via executive action, pledged, inter alia, to “holding the increase in the global average temperature to well below 2 °C above pre-industrial levels.”

In the absence of being able to withdraw from the Paris Agreement (which the US cannot do until 4 years after ratifying), President Trump has, as expected, chosen to ignore and reverse emission reduction commitments made by his predecessor. It is also expected that under President Trump the US will renege on the pledge made by developed countries to mobilise $100 billion in climate finance per year by 2020 to assist developing countries with their climate change mitigation and adaptation efforts.

Alicia Nicholls, B.Sc., M.Sc., LL.B., is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.

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US Federal Appeals Court Upholds Suspension of Trump Travel Ban

Photo credit: Pixabay

Alicia Nicholls

Less than a month after taking office, the Trump Administration received another judicial blow yesterday to one of its major policy actions. The United States’  Court of Appeals for the Ninth Circuit in its decision in State of Washington v Trump dismissed the Government’s motion for a stay pending appeal of an order of the US District Court for the Western District of Washington which had temporarily suspended the travel ban nationwide.

Background

The genesis to the legal dispute was an executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” signed by President Trump on January 27, 2017. Inter alia, the order sought to ban for 90 days entry into the US of all nationals of seven predominantly Muslim countries, namely Iraq, Iran, Sudan, Yemen, Libya, Syria and Somalia, and indefinitely suspended entry of all Syrian refugees into the US. It also sought to suspend the US Refugee Admissions programme for 120 days, with further direction that on recommencement of the programme, the Secretary of State should prioritise refugees of a minority faith in their country (in this case it would be Christians) with claims of religious persecution.

Upon its signature, the executive order’s impact was quick and brutal. Not only were thousands of visas cancelled but US greencard holders were among those who were either stranded at airports, separated from their families or being deported pursuant to the order. Protests erupted across the US and in several other countries. Several legal challenges were filed, including rulings by federal judges in New York and Massachusetts against the ban. Among the chaos, President Trump swiftly fired Acting Attorney General Sally Yates after she refused to defend the constitutionality of the order.

The decisive blow to the travel ban came after the February 3rd ruling of Judge James Robart, federal judge in the United States District Court for the Western District of Washington. In State of Washington v Trump et. al , a challenge brought by the State of Washington, Judge Robart  held that certain actions of the executive order were ultra vires the constitution, enjoining the government from implementing those provisions and granting a temporary nation-wide restraining order. Thereupon, the Department of Homeland Security suspended implementation of the executive order, whilst the Government prepared its appeal.

Issue 

In the instant case, the Court was asked to consider the Government’s request for an emergency stay of the temporary nation-wide restraining order issued by Judge Robart. The Government requested the stay pending appeal of the order.

Arguments

The Government argued that the federal district court lacked authority to enjoin enforcement of the order because the President has “unreviewable authority to suspend the admission of any class of alien” and that his/her decisions on immigration policy and national security are unreviewable even where they contravene constitutionally-enshrined rights and protections. They further submitted that any challenge to such presidential authority by the judicial branch would be a violation of the principle of separation of powers.

Counsel for the Government also argued that the States of Washington and Minnesota had no locus standi in this matter. However, the Court found that by showing the harm caused to their universities’ research and teaching because of the impact of the travel ban on those faculty members and students who are nationals of those countries, the states met the test for standing of “concrete and particularised injury” as was elaborated in Lujan v Defenders of Wildlife.

In their arguments before the lower court, the states had argued that the executive order violated the procedural rights of aliens, including denying entry to greencard holders and non-immigrant visa holders without sufficient notice and without giving them an opportunity to respond. The states had also argued that the damage to their state economies and public universities were in violation of the First and Fifth Amendments to the US constitution and that they violated a wide range of Acts, including the Religious Freedom Restoration Act. Counsel for the states also reminded the court of President Trump’s words during the campaign as support for their argument that it was intended to be a “Muslim ban” and not an act to protect against terrorist attacks by foreign nationals.

In the instant case before the federal appeals court, one of the things the Government had had  to show that it was likely to prevail against the due process claims made by the States.

Judgment

The learned judges, William C. Canby, Richard R. Clifton, and Michelle T. Friedland, considered four main questions in arriving at their decision: likelihood of the Government’s success on the merits of its appeal, whether the applicant would be irreparably injured absent a stay, whether issuance of the stay will substantially injure the other parties interested in the proceedings, and where the public interest lies.

In an unanimous ruling (3-0), the Court denied the Government’s emergency motion for a stay, finding that the Government has neither shown a likelihood of success on the merits of its appeal nor has it shown that failure to enter a stay would cause irreparable injury.

Moreover, in dismissing the Government’s central claim about the unreviewability of the president’s decisions on immigration policy, the court argued that there was no precedent to support this claim and that it is a claim which “runs contrary to the fundamental structure of our constitutional democracy”. The court rightly argued that it was merely exercising its role of interpreting the law. Relying on decided cases, the court held that while courts owe a deference to the executive branch in matters of immigration and national security, this does not mean that the courts lack authority to review compliance of executive branch actions with the constitution.

So what next?

True to form, President Trump used Twitter as his medium of choice to express his displeasure with the verdict. It is likely that the next step for the administration will be to appeal to the US Supreme Court.

The full text of the Court’s judgment may be obtained here.

Alicia Nicholls, B.Sc., M.Sc., LL.B., is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.

President Trump signs executive order pulling US out of TPP

Alicia Nicholls

With the stroke of a pen, newly inaugurated United States president, Donald J. Trump, today made good on one of his least controversial campaign promises; withdrawing his country from the 12-country Trans-Pacific Partnership (TPP) agreement via an executive order.

The Agreement, which was signed by the US and eleven other Pacific-rim participants in February 2016, was intended to be a high standard agreement and was significantly WTO-plus in its provisions. While hailed by big business for its ambitiousness, several aspects made the agreement significantly unpopular with civil society groups and increasingly some politicians which criticised the secrecy under which the negotiations took place, the implications of its intellectual property rights provisions for access to medicines, the choice of the longstanding investor-state dispute settlement mechanism for settlement of investor claims against states, inter alia.

Another criticism was that in absence of significant progress in the WTO Doha Round (which is now all but declared dead) it would set new standards and rules for 21st century global trade given that the parties account for 40% of the global economy and a third of global trade. It would turn the non members into standard-takers without having the chance to have been at the negotiating table. Mr Trump’s criticism of the agreement,however, was simply that it would kill American jobs.

Although President Barack Obama had championed the agreement and had pushed unsuccessfully for its ratification by congress, TPP was a rare point on which there was consensus by then candidates Republican, Donald Trump and Democrat, Hillary Clinton who both criticised its possible implications for US manufacturing and jobs. During the campaign, Mr. Trump had likened the agreement to rape of the country. Previously Mrs. Clinton had called it the “gold standard” but later said she was against the final outcome.

The move is a politically beneficial one for President Trump as it ticks off one of his most popular campaign promises and makes him look like a hero for American workers. It also gets him bipartisan support and will likely improve his approval ratings which have been the lowest for an incoming president.

Mr. Trump’s move also signals that he aims to stick to his “America first” trade policies. In upcoming days Mr. Trump also signalled his intention to start renegotiation of the North American Free Trade Agreement with partners Canada and Mexico to secure a better deal for American workers. Among other proposals, Mr. Trump has restated his threat to impose a border tax on imports from US companies which outsource jobs overseas. The withdrawal of the US from the TPP also raises questions about the future of yet another mega regional trade agreement, the Trans-Atlantic Trade and Investment Partnership Agreement (TTIP) currently under negotiation between the US and the EU.

Mr. Trump will be meeting with UK Prime Minister Theresa May on Friday to discuss, inter alia, UK-US post-Brexit trade relations. Unlike his predecessor, President Trump has indicated that the UK will not be at the back of the queue for a free trade agreement with the US. However, in contrast to Mr. Trump’s neo-mercantilist views, Mrs. May has enthusiastically reiterated her support of free trade and free markets, indicating last week her intention for the UK to become a global leader of free trade.

President Trump has indicated he will seek to negotiate bilateral agreements with those individual TPP countries with which the US does not yet have an FTA. With regard to the future of TPP, the views of the other countries are mixed. Japanese Prime Minister Shinzo Abe previously indicated that TPP without the US was meaningless. Malaysia indicated it would go the bilateral route while Australia indicated it would try to salvage the agreement. A major geopolitical concern raised by foreign policy analysts about the US’ withdrawal is that it misses an opportunity for the US to increase its influence in the Asia-Pacific region, leaving an opening for China which was not a party to TPP. However, negotiations on RCEP, to which China is party and seen as a rival to TPP, have also been slow.

Alicia Nicholls, B.Sc., M.Sc., LL.B., is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.