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U. S. President Barack Obama and Chinese President Xi Jinping will announce that their two countries are officially joining the Paris Climate Treaty when they meet on Saturday, 3rd September, ahead of the G-20 summit meeting in Hangzhou, China.  The South China Morning Post reported on 25th August that the announcement would occur on Friday, 2nd September, but an environmental reporter told me today that Saturday was the day.

President Obama’s action in joining the treaty without ratification by the Senate is clearly an unconstitutional usurpation of the Senate’s authority.  Article Two, Section Two, Clause Two of the U. S. Constitution states: “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

The U. S. State Department insisted at COP-21 in Paris last December that calling it the Paris Agreement rather than the Paris Climate Treaty would help President Obama evade the constitutional requirement of Senate ratification.  Obama Administration officials continue to insist that it is an executive agreement that only requires the President’s approval. Marlo Lewis, my CEI colleague, details why it is a treaty and not merely an executive agreement in this analysis, and Steven Groves of the Heritage Foundation makes a similar analysis here.

Negotiators at COP-21 went along with the charade that it’s not really a treaty for the United States.  However, the UN Framework Convention on Climate Change Secretariat considers it a treaty.  The relevant UNFCCC web page is headlined: “Paris Agreement—Status of Ratification.”  The information note prepared by the UNFCCC Legal Affairs Programme on the Entry into Force of the Paris Agreement: Legal Requirements and Implications begins: “1. The Vienna Convention on the Law of Treaties states that ‘a treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree’.”

Moreover, every other country considers it a treaty and is going through its normal procedures for joining a treaty.  Patrick Goodenough in CNS News reported recently that even in China, which is ruled by a Communist Party dictatorship, the government has referred the treaty to the Standing Committee of Parliament for its approval.

The fact that President Obama knows that Paris is a treaty inadvertently slipped out just this week. Valerie Richardson reported in the Washington Times that: “Speaking at a conservation summit in Lake Tahoe, Nevada, Mr. Obama said elected officials in the U.S. must continue to work on policies to reduce greenhouse gas emissions after he leaves office in January. ‘It’s not going to happen if we boast about how we’re going to scrap international treaties, or have elected officials who are alone in the world in denying climate change, or put our energy and environmental policies in the hands of big polluters,’ Mr. Obama said.”

It will be a bitter irony if President Obama does indeed unilaterally commit the United States to the Paris Climate Treaty on 3rd September for it was on that day in 1783 that United States negotiators signed the Treaty of Paris officially ending the American Revolutionary War with the United Kingdom.  An official U. S. government web page includes this comment: “The three American negotiators, John Adams, Benjamin Franklin, and John Jay, proved themselves to be masters of the game, outmaneuvering their counterparts and clinging fiercely to the points of national interest that guaranteed a future for the United States.”

Clinging fiercely to the national interest is not really President Obama’s thing. Another difference between then and now is that the Continental Congress meeting in Annapolis ratified the Treaty of Paris on 14th January 1784.

 

 

The South China Morning Post reported on Thursday that U. S. President Barack Obama and Chinese President Xi Jinping “are set to jointly announce their ratification” of the Paris Climate Treaty when they meet on 2nd September before the G-20 Summit.  This is curious because ratifying treaties in the United States requires a two-thirds vote of the Senate.

Here is the language from Article Two, Section Two, Clause Two of the U. S. Constitution: “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

The article by Li Jing references this curious requirement: “There are still some uncertainties from the US side due to the complicated US system in ratifying such a treaty, but the announcement is still quite likely to be ready by Sept 2,” said a source, who declined to be named.

In China’s Communist Party dictatorship, ratification merely requires their Maximum Leader to say, “So be it.”

Later in the article, Li Jing again tries to explain the inscrutable U. S. methods for ratifying a treaty: “US law allows the nation to join international agreements in a number of ways, including through the authority of the president.”

Lo and behold, the President of the United States can ratify a treaty in the same way as China’s Maximum Leader.  He merely has to say the magic words, “So be it.”  And it is so.  Who knew that President Barack Obama has become our Maximum Leader, or perhaps I should say our dear Maximum Leader? 

 

The Democratic Party officially adopted their 2016 platform at their national convention in Philadelphia on July 25th. The energy and environment section is titled “Combat Climate Change, Build a Clean Energy Economy, and Secure Environmental Justice.” It begins with this statement: “Climate change is an urgent threat and the defining challenge of our time.”

The challenge doesn’t actually seem to be much of a challenge, because the platform claims that tackling it by producing “50 percent of our electricity from clean energy sources within a decade, with half a billion solar panels installed within four years and enough renewable energy to power every home in the country” will create “millions of good-paying middle class jobs” and “save families and businesses money on their energy bills.”

“Democrats believe that carbon dioxide, methane, and other greenhouse gases should be priced to reflect their negative externalities, and to accelerate the transition to a clean energy economy and help meet our climate goals.” However, putting a price on emissions does not mean a carbon tax, which is not mentioned, although the platform does say that they “support using every tool available to reduce emissions now.” These steps include the so-called Clean Power Plan, fuel efficiency standards for automobiles and heavy-duty trucks, and higher energy efficiency standards in building codes and appliances.

As for environmental justice, Democrats “will work to expand access to cost-saving renewable energy by low-income households, create good-paying jobs in communities that have struggled with energy poverty, and oppose efforts by utilities to limit consumer choice or slow clean energy deployment.”

Although renewable energy apparently saves us money, “Democrats believe the tax code must reflect our commitment to a clean energy future by eliminating special tax breaks and subsidies for fossil fuel companies as well as defending and extending tax incentives for energy efficiency and clean energy.”

Democrats vow to prohibit oil production in the Arctic and off the Atlantic coast and to “phase down extraction of fossil fuels from our public lands,” while working “to expand the amount of renewable energy production on federal lands and waters.”

The platform pointedly mentions twice that Republican presidential nominee Donald Trump has called climate change a “hoax.” Trump has also promised to stop funding the UN Framework Convention on Climate Change and withdraw the U.S. from the Paris Climate Treaty. Democrats, on the other hand, “are committed to a national mobilization, and to leading a global effort to mobilize nations to address this threat on a scale not seen since World War II.” Mobilization will begin in the first 100 days of the next administration when “the President will convene a summit of the world’s best engineers, climate scientists, policy experts, activists, and indigenous communities to chart a course to solve the climate crisis.”

In addition to supporting corporate disclosure of climate risk, “Democrats also respectfully request the Department of Justice to investigate allegations of corporate fraud on the part of fossil fuel companies accused of misleading shareholders and the public on the scientific reality of climate change.”

Compare and contrast this line in a speech at the Democratic National Convention last night:

“Democrats don’t alienate, isolate, exclude or demonize; and we don’t manufacture fear.”   —California Senate President Pro Tem Kevin De Leon, in a speech at the Democratic National Convention, 25th July 2016, https://www.youtube.com/watch?v=qKhNWIPmfcM

With a few quotes from the “Web of Denial” speeches by Senate Democrats on the Senate floor two weeks ago:

“Welcome to the web of denial. Thank you to those who are working to expose it. It is a filthy thing in our democracy.”  —Senator Sheldon Whitehouse (D-RI), in a speech on the Senate floor, 11th July 2016, Congressional Record, page S4952

“These front groups are paid to spin a web of denial wrapped in ideology with the aim of purposely deceiving the public about the dangers of climate change.”   —Senator Jeanne Shaheen (D-NH), in a speech on the Senate floor, 12th July 2016, Congressional Record, page S4987

“So it seems that while CEI has changed its client, it is still in the exact same business of selling lies and selling out the health and the future of ordinary Americans.”  —Senator Jeanne Shaheen, 12th July, Congressional Record, page S4989

“But this past May, William Happer was a signatory on a misleading, full-page ad in the New York Times.  The ad, placed by another thread in the web of deceit, the Competitive Enterprise Institute, attacked the reasonable efforts of New York attorney general Eric Schneiderman and a coalition of other attorneys general united for clean power who are investigating more than 100 businesses, nonprofits, and private individuals to see if they misled the public about climate change.”  —Senator Edward Markey (D-Mass.), in speech on the Senate Floor, 12th July 2016, Congressional Record, page S5012

 

The Republican National Convention on 18th July officially adopted their 2016 party platform.  Senator John Barrasso (R-Wyo.) chaired the platform committee; and the co-chairs were Oklahoma Governor Mary Fallin and Representative Virginia Foxx (R-NC).

Notably, the GOP platform states that the Paris Climate Treaty cannot bind the United States unless it is ratified by the Senate.  The party also demands immediate defunding of the UN Framework Convention on Climate Change in accordance with Public Law 103-236.  It opposes a carbon tax and subsidies for politically-favored types of energy.

On regulations, the platform says Republicans will prohibit EPA from regulating carbon dioxide and repeal the “Clean Power” Plan.  It also vows to block the hydraulic fracturing rules, end the misuse of the Endangered Species Act to stop resource production, and reform the National Environmental Policy Act permitting process.

Perhaps most interestingly, the Republican Party now officially supports dismantling the Environmental Protection Agency: “We propose to shift responsibility for environmental regulation to the states and to transform the EPA into an independent bipartisan commission, similar to the Nuclear Regulatory Commission, with structural safeguards against politicized science.”  In addition: “ We will strictly limit congressional delegation of rule-making authority, and require that citizens be compensated for regulatory takings.”

On energy production, the platform contrasts its support for more domestic production of all types of energy (that don’t require subsidies) with the Democrats’ call to “keep it in the ground.”  It states that the “Democratic Party’s campaign to smother the U. S. energy industry takes many forms, but the permitting process may be its most dangerous weapon.”  Permitting delays for oil and gas production on federal lands are cited as the prime example.

Further in regard to federal lands, for the first time, the Republican Party supports transferring federal lands (which comprise over 640 million acres or nearly 30% of the country) to the states.

The Philippine Daily Inquirer reported that President Rodrigo Duterte announced on 18th July that the Philippines would not ratify the Paris Climate Treaty.  According to the story by Marlon Ramos, “the president said a foreign ambassador recently reminded him of the country’s commitment to limit its carbon emissions.”  Duterte continued that he was angry and wanted to kick the ambassador.

President Duterte explained why: “We have not reached the age of industrialization. We’re now going into it. But you are trying to stymie [our growth] with an agreement that says you can only go up to here.  That’s stupid. I will not honor that.”

He continued: “Now that we’re developing, you will impose a limit?  That’s absurd.  That’s how very competitive and constricted our lives [are] now.  It’s being controlled by the world, it’s being imposed upon us by the industrialized countries. They think that they can dictate the destiny of the rest of the [world].”

The Philippines’ Nationally Determined Contribution to the Paris Treaty is to reduce emissions by up to 70% by 2030.  That commitment was made by the previous administration, which also approved building 29 new coal-fired power plants over the next decade.  Duterte was elected president on 9th May 2016 by an overwhelming majority and took office on 30th June.

Fifteen Republican state attorneys general led by West Virginia AG Patrick Morrisey sent a letter to House and Senate leadership on 11th July that calls on Congress to eliminate “burdensome and illegal regulations by strengthening the Administrative Procedure Act (APA).”  The letter received very little attention in the press when it was sent, but on 19th July there was an article in the West Virginia Record and another by Michael Bastasch in the Daily Caller.

The first paragraph summarizes the AG’s objections to federal regulatory overreach:

“As the chief legal officers of our States, we are concerned about the mounting costs that unlawful federal regulations—advanced in violation of the Administrative Procedure Act—impose on citizens, businesses, and state and local governments.  With seemingly increasing frequency, federal agencies are: (1) issuing guidance documents as a way to circumvent the notice and comment process; (2) regulating without statutory authority; (3) failing to consider regulatory costs; and (4) failing to fully consider the effect of their regulations on States and state law.”

The letter continues with a summary of their request:

“We are encouraged that the U. S. House of Representatives and the U. S. Senate recently have considered legislation directed toward resolving some of these concerns.  We write today to urge Congress to go further and take concrete action to ensure that federal agencies are in fact providing opportunity for notice and comment for all binding agency requirements, acting within their delegated authority, and always rigorously assessing the costs of their regulations.”

The letter notes that guidance documents, interpretive rules, and policy statements are not subject to the APA because in theory they are not binding.  But in practice, many of these quasi-rules are binding.  Wayne Crews, my CEI colleague, wrote a significant study, Mapping Washington’s Lawlessness, published last December that catalogues the extent of these binding non-rules.  And here is a recent interview with Wayne on what he has named “regulatory dark matter.”

Post image for EPW Republicans to McCarthy: Is EPA Climate Science Consistent with Data?

At a March 4 Senate Environment and Public Works (EPW) committee hearing, Sen. Jeff Sessions (R-AL) queried EPA Administrator Gina McCarthy about climate change impacts, global temperatures, and climate models. McCarthy opined that droughts and storms are becoming more frequent worldwide, but had no data to back up her opinion when Sen. Sessions cited conflicting evidence.

In addition, although apparently unaware of the growing divergence between climate model predictions and observations, McCarthy was confident it is irrelevant to EPA’s assessment of climate change risks (i.e. the scientific rationale for the administration’s climate policies). She did, however, promise to provide written answers to Sen. Sessions “within a few days.” See 1:30-6:17 of this video clip.

On April 1, Sessions and three other EPW Republicans (Inhofe of Oklahoma, Wicker of Mississippi, and Barrasso of Wyoming) sent a letter reminding McCarthy of her promise and stating their questions in more detail.

Citing the latest Intergovernmental Panel on Climate Change (IPCC) assessment and other information, the Senators challenge McCarthy to substantiate her views with respect to drought, storms, global temperatures, and the accuracy of climate models.

Sen. Sessions’s press release, which includes the text of the letter, follows. [click to continue…]

Post image for EPA’s Clean Power Plan: Whitman Goes Orwell on McConnell

In a recent column in Politico, former EPA Administrator Christine Todd Whitman scolds Senate Majority Leader Mitch McConnell (R-Ky.) for an op-ed urging states to ‘just say no’ to EPA’s Clean Power Plan (CPP) – the agency’s proposal to cap carbon dioxide (CO2) emissions from state electric power sectors.

In a nutshell, Whitman accuses McConnell of urging States to break the law. Nonsense. Declining to submit a plan to implement EPA’s regulation is a lawful option under the Clean Air Act. Indeed, the right of States to keep their fingerprints off regulations they regard as unlawful or simply as misguided is basic to the “cooperative federalism” concept on which the Clean Air Act is based. Whether or not states should be complicit in the Clean Power Plan is a prudential question. McConnell argues (correctly, IMO) that the most prudent course for States is to let EPA bear sole responsibility for implementing an unlawful rule.

Although Whitman quotes two sentences from McConnell’s essay, she never engages any of his arguments. Instead, she tut-tuts about the rule of law without apparently understanding what it means.

I reproduce Whitman’s column below and offer commentary on each part. Her text is indented in blue, my comments are standard width in black.

Whitman: Sen. Mitch McConnell earlier this month encouraged states to defy federal environmental regulations by simply ignoring them. This was not some quote taken out of context by a pesky reporter; it was an op-ed he wrote in the Lexington Herald-Leader. The Republican Senate majority leader is protesting the Environmental Protection Agency’s proposal to cut greenhouse gas emissions from coal plants. The agency plans to finalize the rule this summer, after which states will have a chance to submit their own plans to meet the EPA’s specific goal for the state. He writes:

“Think twice before submitting a state plan — which could lock you in to federal enforcement and expose you to lawsuits — when the administration is standing on shaky legal ground and when, without your support, it won’t be able to demonstrate the capacity to carry out such political extremism. Refusing to go along at this time with such an extreme proposed regulation would give the courts time to figure out if it is even legal, and it would give Congress more time to fight back.”

None of this is surprising from the senator who said shortly after his reelection that his top priority was “to try to do whatever I can to get the EPA reined in,” but it is extremely disappointing and has the possibility to undermine our nation’s entire rule of law.

ML Comment: It’s also not surprising that a prominent EPA alumna sides with her alma mater. Just as the value of your diploma is affected by your school’s subsequent academic standing, so the prestige of a former Administrator is affected by the public perception, regulatory reach, and economic importance of the agency she once ran. [click to continue…]

The worst

The worst

…EPA’s use of a Clean Air Act provision regarding the ozone layer in an effort to advance the President’s international climate goals.

This ongoing regulatory regime is known as the Significant New Alternatives Policy program, and it represents the worst of all worlds: it’s a naked power grab; it’s bolstered by rent-seeking; and it actually endangers public health. On account of all of these factors, it’s the pound-for-pound worst regulation promulgated yet by Obama’s EPA.

Bullet-point background: [click to continue…]