April 2016

Today, at least 155 governments are expected to sign the Paris Agreement at U.N. headquarters in New York. A visitor to a prominent skeptic blog posted the following comment:

“But Obama’s negotiators in Paris negotiated with the leader of the summit, another socialist, for a non binding deal. Essentially making the whole thing meaningless in order for him to attempt to bypass congress.”

That dismissive comment expresses an opinion held by many conservatives and skeptics. It is incorrect.

Beguiled by Obama’s claims that the agreement is “non-binding,” “unenforceable,” hence “not a treaty,” many conservatives assume it’s harmless, a global feel-good exercise they can safely ignore. Not so.

Bypassing Congress is not meaningless. It undermines and, unless forthrightly opposed, can destroy constitutional checks and balances.

Moreover, the agreement is inherently dangerous to America’s economic future and capacity for self-government. Here’s why.

The guts of the agreement are a detailed collection of reporting, monitoring, and verification requirements which, flagged by the word “shall,” are understood to be legally binding. Those procedural “commitments” are the framework for a global, multi-decadal campaign of political pressure. It’s chief function is to overcome U.S. political resistance to climate alarm, EPA’s power plant rules, cap-and-trade, wealth transfers from the poor in rich countries to the rich in poor countries (a.k.a. “climate finance”), and “keep it in the ground” restrictions on domestic energy production.

Granted, our specific emission reduction and climate finance commitments are non-binding in the sense of self-chosen rather than specified by the agreement itself, but for the United States, that is a distinction without a difference. Americans expect their leaders to keep all solemn promises, whether or not there are legal penalties for breaking them. As a GEICO ad might put it, “When you’re the United States, you keep your promises; it’s what you do.” The way nations honor their non-binding promises under the Paris Agreement is to turn them into legally binding appropriations and regulations.

Some conservatives assume that if President Obama can make America a party to the agreement with the stroke of a pen, a Republican president could withdraw from it just as easily. That too is incorrect.

The agreement “enters into force” when at least 55 countries representing 55 percent of global greenhouse gas emissions ratify it (an outcome expected soon). After the agreement enters into force, a party may not notify its intent to withdraw until three years later, and withdrawal does not become effective until one year after notification.

So by the terms of the agreement, a Republican administration would be bound for four years to participate in the annual climate summits and endless rounds of specialized committee meetings, providing countless media opportunities for foreign leaders, U.N. officials, and green pressure groups to “name and shame” U.S. officials who question climate orthodoxy, fail to pony up billions in climate finance, or oppose EPA’s power plant rules and other greenhouse gas regulations that would be dead on arrival if proposed as legislation in Congress.

Congressional leaders can foil this scheme, but only if they challenge rather than repeat Obama’s core premise that the Paris Agreement is not a treaty, hence does not require Senate approval to enter into force with respect to the United States.

The good news is Sen. Mike Lee (R-Utah) and Rep. Mike Kelly (R-Penn.) completely get it and today issued a statement challenging the constitutional bona fides of Obama’s climate diplomacy. [click to continue…]

What political costs would a Republican president incur should he attempt to “withdraw” the United States from the Paris Agreement? That is a question to which President Obama has given much thought and GOP leaders little.

Writing in yesterday’s Washington Post, environmental reporters Chris Mooney and Juliet Eilperin argue that President Obama’s “rapid move to join the Paris climate agreement could tie up the next president.”  They reason as follows.

The Paris Agreement “enters into force” as soon as 55 countries representing 55% of the world’s greenhouse gas emissions join the agreement (Article 21). A party may not withdraw until three years after the agreement enters into force, and withdrawal does not “take effect” until “expiry of one year from the date of receipt by the Depositary of the notification of withdrawal” (Article 28). Thus if, as expected, the Obama administration signs the agreement on Earth Day (April 22) and deposits the U.S. article of acceptance or approval before Obama leaves office, America will be a party to the agreement for at least the next four years — “the length of a presidential term.”

Yet as Mooney and Eilperin acknowledge, the administration “has said that the Paris agreement is not, in its eyes, a formal, legally binding treaty, which means that it doesn’t have to be ratified by the Senate.” That raises an obvious question. If the agreement is not a formal treaty, if it’s not legally binding, how exactly does it “enter into force” with respect to the United States? How can it bind us to remain a party until 2020 even if the American people elect a president and Congress opposed to the agreement?

Mooney and Eilperin fail to flag the rhetorical sleight of hand by which Obama seeks to have his cake and eat it. Obama wants an agreement that, like a real climate treaty, controls domestic energy policy for decades to come, regardless of domestic politics and the policy preferences of future U.S. leaders.  Yet he also wants an agreement that is somehow not a treaty, so he can adopt it unilaterally, with the stroke of a pen, without engaging the Senate, where the agreement would be dead on arrival.

This game plan should be too clever by half. I say “should be,” because most GOP leaders have not shown they have the wits and courage to unmask and defeat it.

The first step in foiling Obama’s end-run around the Constitution is simply to call the Paris Agreement by its proper name: a treaty. [click to continue…]