Last week, the Trump administration announced that it plans to end a federal program for greenhouse gas emissions reporting from thousands of facilities such as power plants and oil refineries.
“As the agency continues to Power the Great American Comeback,” the Environmental Protection Agency, or EPA, wrote in a press release announcing the proposed rule change, “this proposal represents a significant step toward streamlining operations, cutting unnecessary red tape, unleashing American energy, and advancing EPA’s core mission of protecting human health and the environment.”
Legal experts say that the move undermines U.S. obligations under international law, including legal obligations that were clarified in a landmark ruling by the world’s highest court, the International Court of Justice, or ICJ, less than two months ago. The case was brought by Vanuatu and other Pacific island states who are experiencing the harmful effects of climate change in the form of sea level rise and extreme weather, and is the culmination of decades of international litigation seeking to hold the U.S. and other major greenhouse gas emitters accountable for harming the planet.
The case included arguments by Indigenous attorneys and testimonies from Indigenous Pacific communities about how climate change-fueled extreme weather is threatening their traditional ways of life. In Vanuatu, for example, entire Indigenous villages have been forced to relocate due to landslides brought by heavy rains, leading to the loss of traditional knowledge and place-based customs.
“Entire schools have had to be relocated due to coastal erosion,” said Arnold Kiel Loughman, the attorney general of Vanuatu, who argued before the ICJ. “Every year you have to focus on rebuilding instead of developing the country.”
Maria Antonia Tigre, director of global climate change litigation at the Sabin Center for Climate Change Law at Columbia Law School, said the ICJ’s ruling this summer made clear that all members of the United Nations have an obligation to exercise due diligence to mitigate the climate crisis.
“The greenhouse gas reporting program has been a corner store of transparency in climate governance for a long time and the data is really indispensable,” Tigre said. “Dismantling that system would really undermine the very possibility of evidence-based regulation and enforcement.”
The ICJ ruling also said that all countries are responsible for regulating major emitters within their jurisdictions. “A State may be responsible where, for example, it has failed to exercise due diligence by not taking the necessary regulatory and legislative measures to limit the quantity of emissions caused by private actors under its jurisdiction,” the court said.
A spokesperson for the EPA said that the agency is acting within the boundaries of U.S. law, including the Clean Air Act.
“We are committed to respecting the boundaries of that authority and ensuring that EPA’s requirements are reasonable and do not impose billions of dollars in cost without justification,” the agency said. “Any interested party is welcome to submit comments on the proposed rule during the public comment period, and we look forward to reviewing and responding during the rulemaking.”
Despite Trump’s “America First” policies, Tigre and other legal experts say that the U.S. is still bound by what is known as “customary international law,” which applies to all countries that are parties to the United Nations, which still includes the United States.
“I think this is precisely why this court put this [decision] out, to prevent the precise behavior that America is showing right now,” said Johanna Gusman, a Fiji-based senior attorney at the Center for International Environmental Law. “The U.S. can’t pretend that it doesn’t apply to them.”
The International Court of Justice was created in the wake of World War II to provide a legal venue to settle disputes peacefully between countries. The U.S. initially accepted the court’s jurisdiction when it opened in 1946, but former President Ronald Reagan officially rescinded that in 1985 after Nicaragua brought a case against the U.S. alleging the American military had violated its sovereignty. (The court ruled against the U.S. in 1986.)
In the first nine months of Trump’s second time as president, his administration has pulled the U.S. out of several U.N. organizations including the World Health Organization, the U.N. Human Rights Council, and the U.N. Educational, Scientific and Cultural Organization, also known as UNESCO. Trump is also withdrawing the U.S. from the 2015 Paris Agreement, a landmark climate treaty that sought to prevent global warming from exceeding the threshold of 1.5 degrees Celsius, echoing the same decision in his first term.
The U.S.’s rejection of the ICJ’s jurisdiction does make it more complicated to hold them accountable. Gusman said she expects further domestic and international litigation down the line to cite the ICJ ruling and to see attorneys seek creative ways to hold the U.S. accountable. On Monday, Vanuatu plans to announce a new resolution to be introduced at the U.N. General Assembly to effectuate the ICJ’s ruling.
“There is an international responsibility here, even if the U.S. still tries to deny that there is one,” Tigre said.
The ICJ is not the only court that has ruled that countries have a responsibility to prevent climate change. Last year, Vanuatu and other Pacific island nations won a similar case at the International Tribunal for the Law of the Sea, which said states have an obligation to reduce greenhouse gas emissions. In July, the Inter-American Court of Human Rights issued a lengthy ruling concluding similarly, and wrote specifically that states have an obligation to generate accurate information to mitigate climate change.
“They have an obligation, a rock solid obligation, to collect this information,” said Kelly Matheson, deputy director of global strategy at the nonprofit Our Children’s Trust. “What the Trump administration is doing is, full stop, a violation of international law.”