A Single Non-Binding Climate “Deal” with China Is Meaningless, But a Series of Them Could Be Trouble

Headlines tout that the “U.S. and China have announced a landmark agreement to curb carbon emissions,” with the U.S. promising (to China) that it would emit 26% to 28% less carbon dioxide in ten years hence than it did ten years ago.  Naturally, under our system, for any such promise to be meaningful it requires Senate ratification under the Constitution’s Art. II, Sec. 2.  Therefore, some explanation is in order.

This promise — to China, recall — is not binding, is not intended to be binding, and will not be part of a binding promise to the rest of the world for the December 2015 Paris climate treaty talks.

This is the latest example of a new species of promise described as “politically binding”, a turn of phrase introduced in this context during the Bush years, in recognition of the fact that two-thirds of the US Senate will never agree to Kyoto-style constraints.  Shifting to “politically binding” promises also is an effort to circumvent that same reality by effectively introducing treaty commitments to the country without declaring them at customs.

Specifically, the Obama administration’s rhetorical vow is part of the shift in strategy recognizing that the successor to the 1997 Kyoto treaty must culminate with a series of “soft” commitments (those who doubt this might compare the rhetoric by pressure groups embracing Beijing with their insistence during the Bush era that nothing less than a binding pact would do).

In very short, the idea is to embed the Obama EPA’s proposed GHG rules in a series of promises to the world, mindful of “customary international law.”  Under that often gauzy notion, once commitments, however informal, rise to a certain level of recognition, a nation is bound to not violate their “object and purpose.”  So, post-Paris, options could include (according told draft pleadings produced under open records laws) activist state attorneys general turning to the court system to add law to otherwise non-binding commitments.  That would similarly afford an opening to compliant regulatory agencies enamored of the practice known as sue-and-settle.

Regardless, the argument from 2016 onward will be that neither Congress, a new administration nor the courts can molest EPA’s GHG rules, other than to make them stronger of course, as they are at the core of serial promises to the world to enforce and abide by our own ‘climate’ laws; at the time those promises were made, they were made with these rules in mind.

Whatever one’s feelings about the plan, there it is, in un-nuanced brief.  Were it not, one has a difficult time explaining the passion of the “Treaty or Bust!” crowd for these non-binding vows.

As a column in the Financial Times ($) noted just days before the Beijing meeting, this has already prompted talk of a “restore the treaty process” resolution — or, for the more politically minded, a “Are you with Tom Steyer or your voters?” Sense of the Senate — modeled on the 1997 Byrd-Hagel resolution.  The latter instructed President Clinton to not go to Kyoto and agree to that treaty.  He did still go, agree to Kyoto, and even signed it eleven months later; sloppy reporting notwithstanding, we never “unsigned it” (as even then NYT belatedly acknowledged), but instead a non-binding resolution neutered our signature on even a purportedly binding pact.  Neither “the world” nor our courts could take anything from it as an expression of U.S. intent.

The immediate public concern is whether this promise, in return for China repeating its “promise to try” to peak its emissions in the future, actually means anything.  The answer is that, on its face, this “historic agreement” has the legal binding effect of a campaign leaflet.

However, as a “politically binding” promise, it begs (and hints at the answer to) the most important consideration: will it mean something?  That is, what are they trying to do with it?

The Obama administration and its cheerleaders are trying to toss another log or two on the fire of what is called customary international law, which is made up of promises so often made and so well understood that countries are obligated to not violate their object and purposes, regardless if it is not written somewhere.

They hope to persuade the media, the courts and anyone else they can, through the usual overwrought pressure tactics, that neither Congress, a new administration’s EPA, nor the courts can touch they greenhouse gas rules known as the war on coal.

They have been embedded in a series of promises to the world, and under customary international law we cannot violate them.

There is little doubt that reprising the aforementioned Sense of the Senate regarding Beijing/Paris would undermine the idea that these “soft” commitments actually commit the US to anything.​