President Obama insists that the international climate agreement adopted at the COP 21 conference in Paris is not a treaty.
His reason for doing so is obvious. Under the U.S. Constitution, the United States does not become a party to a treaty until “two thirds of Senators present” vote to ratify it (Article II, Section 2, Clause 2). There was no prospect of the Senate ratifying new international climate commitments even when Democrats were in the majority. If Obama acknowledges the Paris agreement is a treaty, it dies in the Senate.
But if the Paris agreement is not a treaty, why should any U.S. citizen or policymaker pay heed to it?
Obama’s answer is that the “commitments” he made in Paris are “politically binding.” That’s a fancy way of saying the agreement will put political pressure on U.S. leaders, notably the next president and Congress, to uphold the EPA’s so-called Clean Power Plan (CPP) and other regulations required to fulfill Obama’s pledge to cut U.S. greenhouse gas emissions by 26 to 28 percent below 2005 levels by 2025.
The Paris agreement calls such pledges “nationally determined contributions” (NDCs). NDCs are to be enforced primarily through “naming and shaming.” For example, if a Republican president and Congress overturn the CPP or other rules included in the U.S. NDC, or if they don’t pay billions in “climate finance” to developing countries, 190 foreign leaders, scores of green pressure groups, and various liberal media will point fingers and bleat, “You promised, you promised!”
Well, actually, Republicans didn’t promise; only Obama promised. They never promised to support Obama’s unlawful, job-killing power plant rules. They certainly never promised to support other regulations Obama has not yet even proposed. (The administration’s current and proposed regulations fall about 45 percent short of the emission reduction Obama has pledged).
Obama also claims the Paris agreement is not a treaty because its emission-reduction goals—the collection of NDCs—are not binding under international law. But where is it written that an agreement is not a treaty if certain provisions within it are not legally binding?
The emission-reduction goals in the granddaddy of all climate agreements, the U.N. Framework Convention on Climate Change (UNFCCC), are voluntary or aspirational, not legally binding. Yet the UNFCCC is indisputably a treaty, listed as such in the State Department’s periodically-updated “Treaties in Force.”
To that observation Obama would reply that the Paris agreement simply updates the UNFCCC, which the Senate has already ratified, so there’s no need for additional advice and consent. But as Heritage Foundation analyst Steve Groves documents, in 1992, the Democrat-controlled Senate ratified the UNFCCC only on the condition that any subsequent emission-reduction targets and timetables would also be submitted for its advice and consent. As the Senate Foreign Relations Committee stated when reporting the UNFCCC out of committee:
[A] decision by the Conference of the Parties to adopt targets and timetables would have to be submitted to the Senate for its advice and consent before the United States could deposit its instruments of ratification for such an agreement.
NDCs are targets and timetables. So by the terms on which the Senate ratified the UNFCCC, an updated version including NDCs is also subject to the Senate’s advice and consent.
State Department regulations specify eight factors for distinguishing treaties from other types of international agreements. Here’s a quick overview (largely drawn from Groves’s analysis) of how the eight factors apply to the Paris agreement.
(1) The extent to which the agreement involves commitments or risks affecting the nation as a whole. Obama’s pledge envisions costly regulations to decarbonize all major sectors of the U.S. economy. The Paris agreement entails significant commitments and risks, especially considering its ratchet mechanism increasing “climate ambition” every five years in perpetuity.
(2) Whether the agreement is intended to affect state laws. The Paris agreement is in part a political strategy to uphold the Clean Power Plan, which will require dramatic changes in state electricity laws.
(3) Whether the agreement can be given effect without the enactment of subsequent legislation by the Congress. The Paris agreement falls apart unless Congress ponies up billions in climate aid.
(4) Past U.S. practice as to similar agreements. Nearly all international environmental agreements negotiated by the United States are treaties.
(5) The preference of Congress as to a particular type of agreement. Nearly all Senate Republicans agree that new international climate commitments are subject to the Senate’s advice and consent.
(6) The degree of formality desired for an agreement. The Paris agreement contains detailed requirements on mitigation, adaptation, finance, technology transfer, capacity-building, transparency, implementation, compliance, and other topics.
(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. The Paris agreement contemplates NDC timeframes up to 2025 and 2030, and aims to be self-renewing after 2030. There is no plausible excuse of time urgency to bypass the Article 2 treaty-making process.
(8) The general international practice as to similar agreements. The agreement’s emissions reduction requirements are non-binding, making it similar to the UNFCCC. The requirements (NDCs) are targets and timetables, making it similar to Kyoto Protocol. The Senate ratified the UNFCCC but not Kyoto. Hence the United States is a party to the former but not the latter.
What should GOP leaders do to safeguard the Constitution from the President’s climate “ambition”?
In addition to continuing their efforts to overturn the Clean Power Plan, they should pass resolutions explaining why the Paris agreement is a treaty, why it is therefore subject to the Senate’s advice and consent, and why until ratified the Paris treaty is only a proposal of the administration, not a policy of the United States.
A concurrent resolution recently introduced by Sen. Mike Lee (R-UT) and Rep. Mike Kelly (R-Penn.) is exactly the kind of action needed to frame the debate.