Non-Binding, Non-Enforceable Paris Agreement Poised to Destroy U.S. Fossil Fuel Industry—as We Warned

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For years, the Competitive Enterprise Institute has been making the case that the Paris Agreement is a signed but non-ratified treaty that must win the consent of “two-thirds of the Senators present” (Article II, Section 2, Clause 2) before the United States may become a party to it.

Axios on Wednesday posted an article titled “Schumer: Budget plan key to meeting U.S. goals under Paris deal.” A piece in Thursday’s edition, titled “Schumer’s high stakes climate play,” provides further context and commentary.

The gist of both articles is that President Biden cannot fulfill his Paris Agreement pledge to cut U.S. greenhouse gas emissions to 50 to 52 percent below 2005 levels by 2030 absent the climate provisions of the $3.5 trillion spending bill that Democratic leaders hope to pass on a party-line vote.

Axios explains:

Senate Majority Leader Chuck Schumer released an analysis showing the Democrats-only reconciliation plan—and to a much lesser degree the bipartisan infrastructure deal—would essentially put the U.S. on track to meet President Biden’s pledge under the Paris Agreement.

Specifically, the reconciliation bill provides for “payments and penalties that push utilities to speed up zero-carbon power deployment, and new and expanded clean energy tax credits.” Those provisions are essential to Biden’s goal of cutting U.S. power-sector emissions 80 percent by 2030, because the Clean Air Act does not authorize the Environmental Protection Agency (EPA) to restructure the electric power sector.

The Framers rejected the monarchial model of giving the chief executive “sole disposal” of the treaty-making power (Federalist 75). However, the Constitution does not specify when an agreement is so “momentous” that the president may not approve it without the Senate’s advice and consent.

For example, few would argue that President George W. Bush had to obtain Senate approval before concluding a bilateral pact with the Republic of Congo to promote environmental education in secondary schools.

The same cannot reasonably said, however, of the Paris Agreement. President Obama boasted that Paris is “most ambitious climate agreement in history.” Indeed, the Paris Agreement aims to remake the global economy over the next 30 years and more. That makes it the most ambitious environmental agreement ever. Nonetheless, President Obama claimed he had the power to join the agreement on his sole authority.

To provide guidance on whether the president should submit an agreement to the Senate for its advice and consent, the State Department developed a list of eight common-sense criteria known as the Circular-175 factors. Those are as follows:

(1)  The extent to which the agreement involves commitments or risks affecting the nation as a whole;

(2)  Whether the agreement is intended to affect state laws;

(3)  Whether the agreement can be given effect without the enactment of subsequent legislation by the Congress;

(4)  Past U.S. practice as to similar agreements;

(5)  The preference of the Congress as to a particular type of agreement;

(6)  The degree of formality desired for an agreement;

(7)  The proposed duration of the agreement, the need for prompt conclusion of an agreement, and the desirability of concluding a routine or short-term agreement; and

(8)  The general international practice as to similar agreements.

Under each of those factors, the Paris Agreement qualifies as a “treaty” (a pact requiring Senate approval prior to ratification), as my former CEI colleague Chris Horner and I explain in this report.

Consider Paris in respect to criteria 1-3, which are the most important. Participation in the Paris Agreement clearly involves commitments or risks affecting the nation as a whole. Biden’s pledge includes the rapid phaseout of coal and natural gas electric generation throughout the land. That is not some quirky or idiosyncratic goal of Biden’s; it is mathematically required by the agreement’s NetZero emissions agenda. The risks to America include:

Implementing Biden’s emission-reduction pledge would massively affect state laws. Indeed, the “clean electricity payment program” in the reconciliation bill entails a federal takeover of regulatory authorities traditionally reserved to the states.

Most obviously, as Schumer’s analysis confirms, meeting Biden’s Paris pledge is impossible without subsequent legislation by Congress. In fact, that was true of President Obama’s much less “ambitious” Paris pledge to cut U.S. emissions to 26 to 28 percent below 2005 levels by 2025. Under existing statutory authorities, the Obama administration’s adopted and announced regulatory initiatives were projected to fall short of the president’s goal by 800 million metric tons or about 45 percent.

The phrase “advice and consent” occurs twice in Article II, Section 2, with this revealing difference. To appoint ambassadors, Supreme Court justices, and other officers of the United States, the president needs the concurrence of a simple majority of senators. In contrast, ratifying a treaty requires the concurrence of “two thirds of the Senators present.” The Constitution by design impedes the making of treaties that lack broad-based political support.

It was precisely because Congress was in no mood to adopt new international climate commitments that President Obama hit upon the expedient of bypassing Senate scrutiny by deeming Paris “not a treaty.”

The Obama administration sold the Paris Agreement as a no-risk proposition, assuring us that America’s emissions reduction “commitments” would be “non-binding” and “non-enforceable.” But now Democratic leaders invoke those same “voluntary” pledges as a justification for decimating America’s fossil-fuel industry—a policy opposed by lawmakers representing about half the country.

Whether the final bill includes the full-strength version of progressives’ “clean energy payment program,” and whether Sens. Joe Manchin (D-WVA) and Krysten Sinema (D-AZ) would vote for it, remain to be seen. One thing is clear.

That program would be harder to pass had a Senate ratification vote already exposed the Paris Agreement as a failed partisan treaty lacking broad-based national support.