At the Paris climate conference, President Obama got exactly what he wanted: the framework for a multi-decade, global campaign of political pressure directed chiefly against Republicans and their fossil-fuel industry allies.
The Paris Agreement does not directly impose “legally binding” emission-reduction and “climate finance” commitments on the United States. But both conservative gloating and green grousing about the treaty being “toothless” overlook what matters most in climate policy: politics.
Obama will use the Agreement to claim that EPA’s Clean Power Plan and other elements of his climate agenda are promises America has made to the world. The Agreement, moreover, will establish the institutional framework for a global coalition of 190+ foreign leaders, legions of UN bureaucrats, scores of green pressure groups, and hundreds of corporate rent-seekers. The coalition will demand that future Congresses and the next president enact and adopt whatever additional laws and regulations are needed to meet Obama’s emission-reduction pledge — known in bureaucratic parlance as the U.S. “Nationally Determined Contribution” (NDC).
The Agreement contemplates that Parties will submit ever-more “ambitious” NDCs every five years. So the global coalition will be poised to demand that future U.S. NDCs also be turned into laws and regulations. No chains are as binding as those we forge for ourselves!
The Paris pressure cooker is recycled process socialism. There’s an old joke that socialism (spending other people’s money) would be fun if it weren’t for all the committee meetings. Actually, socialist leaders got their jollies at such meetings, which employed a confessional exercise called criticism and self-criticism to cure “false consciousness,” inculcate doctrinal conformity, and enhance understanding of and allegiance to “the plan.”
The parallel to the Paris regime is striking. The Agreement and accompanying “Decision of the Parties” envision endless rounds of meetings and reports. The incessant bureaucratic activity will facilitate the naming and shaming of Parties who doubt the so-called consensus of scientists, deviate from their five-year plans, or fail to demonstrate the desired climate “ambition.”
Inside the Pressure Box
Penn State law prof. Jean Galbraith offers a useful taxonomy for understanding how Paris is supposed to work. She distinguishes between non-binding “substance-based commitments” and binding “process-based commitments.”
The most important substance-based commitments are the emission-reduction targets and policies set forth in industrial countries’ NDCs, and the expectation that industrial countries will contribute at least $100 billion annually to subsidize developing countries’ expenditures for “clean energy” and climate change adaptation.
The process-based commitments involve monitoring, reporting, and participation in committees focused on such matters as mitigation, adaptation, and compliance.
Galbraith quotes the first sentence of Article 4(2) of the Agreement to explain the interaction between binding and non-binding commitments:
Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve.
This sentence deals with both substance and process. Substantively, each party is to “intend” to achieve a certain nationally determined contribution to emissions reductions. But this language does not give rise to a binding international legal commitment to achieve any particular contribution, even the one that the party “intends” to achieve. Procedurally, each party “shall” (which, in legal jargon, means “must”) communicate to the other parties what its intended contributions are. By contrast, this procedural language does give rise to a binding international legal commitment.
Other provisions of the same article require Parties to ensure the clarity and transparency of their NDCs, explain how NDC policies will achieve the intended emission reductions, list the NDCs on a public registry, and communicate updated NDCs every five years.
Similarly, although no Party can be sued for not paying billions in “climate finance,” Article 9(7) requires industrial countries to submit biennial reports on their efforts to provide and mobilize financial support for developing countries.
Augmenting the political impact of the Agreement’s reporting requirements will be a peer-pressure system implemented by multiple bodies tasked to monitor and guide Parties’ efforts regarding mitigation, adaptation, finance, capacity building, technology transfer, and compliance. Such bodies include:
- the Technology Mechanism
- the Financial Mechanism
- a compliance-related mechanism
- the Forum on the Impact of the Implementation of response measures
- the Subsidiary Body for Scientific and Technological Advice
- the Subsidiary Body for Implementation
- the Adaptation Committee
- the Least Developed Countries Expert Group
- the Green Climate Fund
- the Warsaw International Mechanism for Loss and Damage
- the Global Environment Facility
- the Least Developed Countries Fund
- the Special Climate Change Fund
- the Standing Committee on Finance
- the Climate Technology Center and Network
- the Paris Committee on Capacity-building
- the Capacity-building Initiative for Transparency
As if that dense network of committees were not enough to foster conformity and “ambition,” the Decision of the Parties also calls for the appointment of “two high-level champions” to “facilitate through strengthened high-level engagement in the period 2016–2020 the successful execution of existing efforts and the scaling-up and introduction of new or strengthened voluntary efforts, initiatives and coalitions.”
What Is to Be Done
GOP leaders can foil this plan to make U.S. climate and energy policy captive to foreign leaders, multilateral bureaucrats, and green pressure groups. But to do so they must launch a political counter-offensive. Their top priority should be to pass a Byrd-Hagel 2.0 resolution clarifying that the Paris Agreement is a treaty, hence is not a policy of the United States unless the U.S. Senate ratifies it. They should pass the resolution before President Obama signs the Agreement at a “high-level signature ceremony” hosted by the U.N. Secretary General on April 22.
Only then can they convincingly explain to the American people that Obama’s signature is just a proposal of a lame duck administration, not a promise America has made to the world.