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.
For further discussion, check out my op-ed “Crunch Time: Will Congress Rescue America from the Paris Agreement?” and my colleague Chris Horner’s blog post “The Senate Must Confront the President on the Paris Agreement.”
For more detailed analyses, see “The Paris Agreement Is A Treaty Requiring Senate Review” and “The Paris Agreement Is a Treaty and Should Be Submitted to the Senate.”