Separation of Powers Alert: Obama Seeks Climate ‘Treaty’ without Senate Ratification

by Marlo Lewis on August 28, 2014

in Blog

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“The Obama administration is working to forge a sweeping international climate change agreement to compel nations to cut their planet-warming fossil fuel emissions, but without ratification from Congress,” Coral Davenport reports in the New York Times.

Were you surprised? In domestic climate policy, Team Obama routinely flouts the separation of powers. Their M.O. from day one has been to ‘enact’ regulatory requirements that, if proposed in legislation, would be dead on arrival.

During this year and next, climate negotiators are again trying to work out a successor treaty to the Kyoto Protocol, which expired at the end of 2012. Under the U.S. Constitution, a treaty enters into force only if ratified, and ratification requires the approval of “two-thirds of Senators present.”

Although Democrats control the Senate, a ratification vote on Kyoto II would fail if held today. With Republicans expected to pick up Senate seats in November, the constitutional path to a new climate treaty seems hopelessly blocked.

So, according to Davenport, the Obama administration plans to negotiate an agreement that is not a treaty yet binding in effect:

To sidestep that [two-thirds] requirement, President Obama’s climate negotiators are devising what they call a “politically binding” deal that would “name and shame” countries into cutting their emissions. The deal is likely to face strong objections from Republicans on Capitol Hill and from poor countries around the world, but negotiators say it may be the only realistic path.

The agreement Obama seeks is no mere ‘coalition of the willing.’ Even though not ratified by the Senate, elements of agreement would still be enforceable as a matter of international law. From the NYT article:

American negotiators are instead homing in on a hybrid agreement — a proposal to blend legally binding conditions from an existing 1992 treaty with new voluntary pledges. The mix would create a deal that would update the treaty, and thus, negotiators say, not require a new vote of ratification. 

Countries would be legally required to enact domestic climate change policies — but would voluntarily pledge to specific levels of emissions cuts and to channel money to poor countries to help them adapt to climate change. Countries might then be legally obligated to report their progress toward meeting those pledges at meetings held to identify those nations that did not meet their cuts.

Is such a “hybrid” feasible? The 1992 treaty to which Davenport refers is the UN Framework Convention on Climate Change, more commonly known as the Rio Treaty. My colleague Chris Horner has warned for years that many climate campaigners interpret the ostensibly “voluntary” Rio Treaty as obligating Annex I (industrial) countries to curb their greenhouse gas emissions.

For example, per Article 4.2(a), each Annex I country “shall adopt national policies and take corresponding measures on the mitigation of climate change, by limiting its anthropogenic emissions of greenhouse gases and protecting and enhancing its greenhouse gas sinks and reservoirs.”

On the other hand, Horner points out, the Senate ratified the Framework Convention based on its “shared understanding” with the Bush I administration that the treaty does not authorize the executive branch to make binding commitments on behalf of the U.S. absent additional advice and consent from the Senate. As the Foreign Relations Committee stated in its report to the floor:

On the Climate Change Convention, the Foreign Relations Committee also noted that decisions by the parties to adopt targets and timetables for limiting emissions would have [to be] submitted to the Senate for advice and consent. It noted further: that a decision by the executive branch to reinterpret the Convention to apply legally binding targets and timetables for reducing emissions of greenhouse gases to the United States would alter the ‘‘shared understanding’’ of the Convention between the Senate and the executive branch and would therefore require the Senate’s advice and consent. [Exec. Rept. 102–55, p. 14].

Here’s my sense of how this plays out. Obama will interpret the Convention as obligating the U.S. to implement the “mitigation” components of his climate action plan. Those include the ever-growing list of regulations administered by EPA, Department of Energy, Department of Transportation, and other agencies, but potentially also subsidies and tax credits for green energy and green jobs.

Obama will use the climate action plan initiatives as a basis for demanding similar “pledges” from other nations — but also use the hoped-for agreement to lock in his domestic climate agenda.

If he pulls it off, future Congresses and the next president won’t be able to overturn EPA regulations, for example, without violating our Framework Convention “pledges” to the “international community.” At some point, Senate opponents may be so demoralized they’ll throw in the towel and consent to ratify a Kyoto successor treaty.

It’s tempting to believe the sheer audacity of the plan will be its undoing. That would be a mistake. This administration is running roughshod over the separation of powers with no effective pushback from Congress and barely a slap on the wrist from the courts.

“We cannot guarantee victory, but only deserve it,” Sir Winston said. To deserve victory, skeptics and constitutionalists must start gearing up now for a climate treaty battle the likes of which we have not seen since the 1997 Kyoto negotiations.

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