At the 21st Conference of the Parties (COP21) meeting in Paris, President Obama wanted, and got, an agreement in which each nation’s core commitments are “politically binding.” Those who laugh about the phrase being an oxymoron, because politicians break their promises all the time, miss the point. What chiefly determines climate policy is not science or law but politics.
The Paris agreement is “politically” rather than “legally” binding in two ways. First, each country’s core commitments are self-chosen (“nationally determined”) rather than specified by the agreement itself. Second, commitments are to be enforced via political pressure (“naming and shaming”) rather than through international tribunals or economic sanctions.
Obama wanted a politically-binding agreement for two reasons. First, he gets to pretend the Paris agreement is not a treaty, hence does not have to be submitted to the Senate for its advice and consent. Even when Democrats were the majority party, there was no chance “two thirds of Senators present” (Article 2, Section 2, Clause 2) would vote to ratify new international climate commitments. If Obama acknowledges the Paris agreement is a treaty, then it is dead on arrival. So he claims it is not a treaty.
Second, an agreement in which each country promises to implement its own “nationally determined contribution” (NDC) to limiting global emissions allows Obama to pretend EPA’sClean Power Plan (CPP) and other elements of his domestic climate agenda are “commitments” America has made to the world.
The absence of formal sanctions does not mean Paris has no teeth. Suppose, for example, the next president, future Congresses, or even courts try to upend any part of Obama’s climate agenda. Thanks to Paris, 190 foreign heads of state, hundreds of Democratic pols, scores of green advocacy groups, and legions of liberal pundits will be primed to denounce Republicans for breaking “America’s promises” and sacrificing mankind’s future on the altar of corporate greed.
Combating alarmist propaganda and confining EPA to the four corners of the Clean Air Act is hard enough already. Is it really of no political consequence if an international agreement grows and institutionalizes a global coalition of governments, U.N. bureaucrats, and Big Green pressure groups hyping climate risks and advocating cap-and-trade, renewable energy quota, and “keep it in the ground” restrictions on fossil-energy production?
Where Is It Written?
I twice used the word “pretend” above to describe Obama’s political strategy because his two main claims about the Paris agreement — it’s not a treaty and “we” have promised the world to implement his climate policies — are flimflam.
Where is it written that a climate agreement must have legally-binding emission-reduction requirements to be a treaty? You won’t find that maxim in the granddaddy of climate treaties, the UN Framework Convention on Climate Change (UNFCCC). Indeed, although the UNFCCC isindisputably a treaty, its emission-reduction goals are by all accounts non-binding, i.e. voluntary or aspirational.
Nor do we find “legally binding” among the State Department’s eight factors for distinguishing treaties from other agreements not subject to the Senate’s advice and consent (such as “sole executive agreements”).
More importantly, where is it written that the president gets to decide unilaterally whether or not a particular agreement is a treaty? The executive and legislative branches are co-equal, and treaty making is a shared power. If the President can by his sole voice declare a treaty not to be treaty because acknowledging it is a treaty would effectively kill it, then he can gut Article 2, neuter the Senate, and enact almost any policy he wants just by negotiating a sole executive agreement with foreign leaders.
Conservatives who gloat that the Paris agreement, by the President’s own admission, is non-binding and therefore not a treaty, unwittingly endorse Obama’s rationale for bypassing the Senate. They unintentionally aid and abet Obama’s ambition to make U.S. climate policy accountable, not to the American people via their elected representatives, but to foreign heads of state, U.N. bureaucrats, and green NGOs via political pressure.
Of Course It’s a Treaty
As noted, State Department regulations specify eight factors for distinguishing treaties from other types of international agreements. Here’s a quick overview (largely drawn from a study by Heritage Foundation analyst Steve Groves) of how the eight factors apply to the Paris agreement.
(1) The extent to which the agreement involves commitments or risks affecting the nation as a whole. The U.S. NDC requires the development and implementation of costly regulations to decarbonize all major sectors of the U.S. economy. The Paris agreement thus entails significant commitments and risks, especially considering its ratchet mechanism to increase “climate ambition” every five years, in perpetuity.
(2) Whether the agreement is intended to affect state laws. For Obama, the Paris agreement is in no small part a political strategy to shield the Clean Power Plan from hostile legislation and litigation. The CPP will require changes in state laws regarding electricity fuel mix, energy dispatch policy, demand management, and carbon trading.
(3) Whether the agreement can be given effect without the enactment of subsequent legislation by the Congress. The Paris agreement falls apart unless Congress ponies up billions for the Green Climate Fund.
(4) Past U.S. practice as to similar agreements. Nearly all international environmental agreements negotiated by the United States were subject to the Senate’s advice and consent.
(5) The preference of Congress as to a particular type of agreement. The Senate Republican caucus “is nearly unanimous in arguing that U.S. participation in a global climate deal should be subject to advice and consent in the Senate” (Bloomberg Energy and Climate Report, May 19, 2015).
(6) The degree of formality desired for an agreement. The Paris agreement and accompanying “Decision of the Parties” contain detailed requirements on mitigation, adaptation, finance, technology transfer, capacity-building, transparency, implementation, compliance, and other topics.
(7) The proposed duration of the agreement, the need for prompt conclusion of an agreement, and the desirability of concluding a routine or short-term agreement.The Paris agreement calls for NDCs through 2025 and 2030, and aims to be self-renewing after 2030. There is no plausible time-urgency excuse to bypass the Article 2 treaty-making process.
(8) The general international practice as to similar agreements. The Paris agreement is the successor to the UNFCCC and Kyoto Protocol, both indisputably treaties requiring Senate ratification for U.S. participation. The agreement’s emission-reduction requirements are non-binding, making it similar to the UNFCCC. Industrial-country NDCs are targets and timetables, making it similar to Kyoto. Because the Senate ratified the UNFCCC but not Kyoto, the United States is a party to the former but not the latter.
Does Paris Merely Update Rio?
Obama claims he need not submit the Paris agreement to the Senate for its advice and consent because the agreement merely updates the UNFCCC, which the Senate ratified in 1992. But U.S. and other industrial-country NDCs are emission-reduction targets and timetables. AsGroves documents, the Senate consented to ratify the UNFCCC only on the condition that subsequent agreements to adopt targets and timetables will also be subject to Senate review.
The Senate Foreign Relations Committee memorialized that “shared understanding” with the Executive Branch when it reported the UNFCCC out of committee:
[A] decision by the Conference of the Parties [to the UNFCCC] to adopt targets and timetables would have to be submitted to the Senate for its advice and consent before the United States could deposit its instruments of ratification for such an agreement.
Lessons of Byrd-Hagel
Conservatives who assume a non-legally binding climate agreement poses no threat to our economy and capacity for self-government should reflect on the battle over the Kyoto Protocol.
A watershed event in that battle was the Senate’s passage of the Byrd-Hagel Resolution in July 1997. Byrd-Hagel preemptively nixed any climate agreement, like Kyoto, that would either exempt developing countries from emission-reduction targets and timetables or harm the U.S. economy.
As my colleague Chris Horner explains, Byrd-Hagel was above all a political solution to a political problem. The resolution passed 95-0, a landslide indicating that, with or without Byrd-Hagel, prospects for Senate ratification were dim. For the same reason, President Clinton was unlikely to submit the treaty for the Senate’s review. What then was the point of putting 95 Senators on record opposing Kyoto?
The Kyoto Protocol, with its cap-and-trade program and other “flexibility mechanisms,” broadly reflected the Clinton administration’s negotiating priorities, and President Clinton signed it on November 12, 1998. Byrd-Hagel deflated in advance any later pretense that Clinton’s signature represented new U.S. emission-reduction commitments. By putting the Senate on record as overwhelmingly opposed to an agreement like Kyoto, Byrd-Hagel undercut any future political pressure campaign based on the fiction that “you promised.”
Byrd-Hagel’s political payoffs were substantial. The exercise helped build bipartisan coalitions in both chambers for the Knollenberg Amendment, which prohibited federal agencies from using funds “to propose or issue rules, regulations, decrees, or orders for the purpose of implementation, or in preparation for implementation, of the Kyoto Protocol.” The Knollenberg restriction, first included in the FY 1999 appropriation bill funding EPA, was a provision in at least five appropriation bills in FY 2001.
Byrd-Hagel also made it harder for EU leaders, “progressive” NGOs, and liberal media to divide and conquer Kyoto foes in the U.S. Senate. Having voted for Byrd-Hagel, a senator could not later flip-flop into the Kyoto camp without paying a political price.
Most importantly, Byrd-Hagel gave Clinton’s successor, President G.W. Bush, an unsinkable talking point when excoriated by Democratic pols, foreign leaders, and environmental activists for “pulling America out of Kyoto.” Like it or not, the U.S. Senate had spoken. Bush officials could truthfully argue that opposition to Kyoto was bipartisan and government-wide.
At times the Bush administration vascillated and endorsed “creeping Kyoto” policies such ascarbon caps for electric power plants and regulatory credit for “voluntary” greenhouse gas reductions. But free-market advocates always thwarted such backsliding, in part by demonstrating the incompatibility of those initiatives with the logic and purpose of Byrd-Hagel.
In short, without Byrd-Hagel, the Kyoto Protocol could have become “politically binding” on U.S. policymakers via the sorts of pressures the Paris treaty is designed to gin up and sustain.
So unless today’s GOP leaders are men of iron (ha!), they will cringe and cave to the Paris pressure regime in 2017 and beyond unless they take strong preemptive action in 2016. The centerpiece of the GOP pushback should be a Byrd-Hagel 2.0. This time, both chambers should pass it, demonstrating that what Obama promised in Paris is only the proposal of an administration, not the policy of the United States.
Paris Is a Real Tiger
The Obama administration spins the Paris agreement as a non-treaty exempt from Senate review so that U.S. and global greens can more efficiently organize political pressure to defend and promote the Clean Power Plan, other regulatory assaults on affordable energy, and EPA’sunlawful reign as the nation’s climate legislator.
GOP leaders can ill-afford to be blasé about that strategy, because it is part and parcel of Obama’s broader agenda of political transformation.
Consider the political implications of the Clean Power Plan. If successfully implemented, the CPP will make every State’s electricity policies more like those of California and the NortheastRegional Greenhouse Gas Initiative (RGGI). That means the CPP will both narrow the differences between Red and Blue State energy policies and narrow the energy-policy choices within Red States. That will tend to shift national politics in a “progressive” direction. Why? Because there is little point in electing Red State politicians if We the People are only allowed to have Blue State policies.
Under the CPP, state energy policies from coast to coast will be subject to EPA’s direction and control. EPA, in turn, will be accountable, via the Paris-treaty pressure cooker, to foreign leaders, international bureaucrats, and transnational NGOs. The Paris agreement is the capstone of a “climate action plan” calculated to marginalize Red State politicians and disenfranchise Red State voters.
The “non-binding, underfunded, unenforceable” Paris agreement is a paper tiger only on paper. Keeping America safe from its claws and teeth will require much more than sneers.
Lock and Load
GOP leaders and their allies must mount their own campaign to undercut the global political pressure regime Obama plans to construct via the Paris treaty. The most important thing they can do is pass a Byrd-Hagel 2.0, such as the concurrent resolution introduced by Sen. Mike Lee (R-Utah) and Rep. Mike Kelly (R-Penn.). For maximum effect, they should pass it before April 22, 2016, when the Paris treaty is officially open for “ratification, acceptance, accession, or approval.”
The resolution and accompanying outreach should resoundingly affirm the following basic points:
(1) The legislative and executive branches are co-equal and treaty making is a shared power. The President does not get to decide unilaterally what is and is not a treaty subject to Senate review.
(2) The Paris agreement, by virtue of its detail, the extent of its commitments, previous national practice, and other factors, is a treaty.
(3) The United States is not a party to a treaty until and unless the Senate ratifies it.
(4) The President cannot unilaterally adopt U.S. emission-reduction targets and timetables as part of an international climate agreement without violating the terms on which the Senate ratified the UN Framework Convention on Climate Change.
(5) The treaty will make executive agencies less accountable to Congress and the American people and more beholden to foreign leaders, U.N. bureaucrats, and unaccountable NGOs. The people’s representatives must act quickly to foil this threat to American self-government.