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Precedent on Environmental Pacts: Treaty or "Executive Agreement"?

President Obama claims the global climate pact negotiated in Paris last December—the so-called Paris Agreement—is an “executive agreement,” not a treaty, hence is not subject to Senate review. How convenient. Obama knows that if he were to submit the Paris Agreement to the Senate for a debate and vote on ratification, it would be dead on arrival.

On Saturday (September 3, 2016), Obama deposited with the United Nations the U.S. “instrument of acceptance” of the Paris Agreement. All 25 other nations that have formally decided to become parties to the agreement have deposited “instruments of ratification.” They fear not the R word (ratification) because they fear not the T word (treaty).

Opponents accuse Mr. Obama of attempting to bypass the Senate’s constitutional role in treaty making. Responding to such criticism, presidential climate advisor Brian Deese claims Presidents Ronald Reagan and George W. Bush “joined important international environmental agreements by using executive agreements,” the Washington Times reports.

Which agreements specifically? Deese apparently did not name names. Fortunately, the State Department has a searchable database on International Agreements to Which the United States Is a Party (TIAS) going back to 1996. So I decided to check for environmental agreements negotiated or adopted during the Bush presidency as executive agreements rather than treaties. Using the search terms “environment” and “conservation,” I find 15 environmental executive agreements. I list them at the end of this post.

Deese apparently also didn’t define what he means by an “important” agreement. The Paris Agreement is clearly at the high end of the scale. Indeed, it aims to mobilize trillions of dollars in “climate finance” (green foreign aid) over the next 15 years, and commit all nations to restructure their energy policies, markets, and infrastructure.

In contrast, the environmental executive agreements adopted by President G.W. Bush were small potatoes. None entailed commitments or risks affecting the nation as a whole. Moreover, all were clearly authorized by Congress, other treaties, or the President’s inherent powers as commander-in-chief or chief executive representing the United States in foreign affairs.

  • Agreements 5, 6, and 7 are bilateral agreements to cooperate on a program (GLOBE) to promote primary- and secondary-school science and education on the environment. The program was created by an inter-agency agreement among the National Oceanic and Atmospheric Organization (NOAA), the National Aeronautics and Space Administration (NASA), and the National Science Foundation (NSF) in 1998. The program is to be funded up to $2 million annually from the budgets of the participating agencies.
  • Agreements 2, 3, 10, 11, 12, 13, 14, and 15 are bilateral agreements to promote forest conservation via debt-for-nature swaps—an activity Congress authorized through the 1998 Tropical Forest Conservation Act.
  • Agreement 1 is a bilateral side agreement with Mexico included in the North American Free Trade Agreement to secure that treaty’s approval by Congress. The side agreement established the Border Environment Cooperation Commission-National Development Bank program, which is currently budgeted at $7.1 million annually.
  • Agreement 9, another bilateral with Mexico, authorizes Peace Corps “volunteers” to “respond to the needs of both Parties in the area of the environment and natural resources.”
  • Agreement 4 is a bilateral between the United States and the United Nations Environment Program (UNEP) to cooperate on activities and facilities supporting access to timely, usable, environmental data and satellite imaging technology.
  • Agreement 8 is a bilateral between the U.S. and Swedish armed forces to collaborate on “environmental protection in defense matters.” The parties seek to share and develop information and technologies to eliminate or reduce the environmental impacts of military bases and operations, mitigate the noise effects of military exercises, and remediate defense-related environmental damages, among other similar purposes.

Clearly, G.W. Bush’s environmental executive agreements provide no precedent for Obama’s plan to adopt “the most ambitious climate change agreement in history” without obtaining the Senate’s advice and consent.

A list of the 15 Bush environmental executive agreements follows.

1. Mexico - Protocol Amending Agreement of November 16 and 18, 1993 concerning the Establishment of a Border Environment Cooperation Commission and a North American Development Bank

Environmental Cooperation

Protocol amending the agreement of November 16 and 18, 1993. Signed at Washington and Mexico City November 25 and 26, 2002; Entered into force August 6, 2004. With appendices.

2. Panama - Agreement Regarding a Debt-for-Nature Swap

Finance: Conservation

Agreement signed at Panama City August 19, 2004; entered into force August 19, 2004. With attachments.

3. Jamaica - Agreement Regarding a Debt-for-Nature Swap to Prepay or Cancel Certain Debt Owed by the Government of Jamaica to the Government of the United States

Finance: Conservation

Agreement signed at Kingston September 21, 2004; entered into force September 21, 2004. With attachments.

4. United Nations Environment Programme - Agreement to Cooperate on Activities and Facilities to Support the UNEP Division of Early Warning and Assessment in North America

Environment: Cooperation

Agreement signed at Washington December 21, 2004; entered into force December 21, 2004.

5. Republic of Congo - Agreement for Cooperation in the Global Learning and Observations to Benefit the Environment (GLOBE) Program

Environmental Cooperation: GLOBE Program

Agreement signed at Brazzaville June 28, 2005; entered into force June 28, 2005.

6. Niger - Agreement for Cooperating in the Global Learning and Observations to Benefit the Environment (GLOBE) Program

Environmental Cooperation: GLOBE Program

Agreement signed at Niamey August 11, 2005; entered into force August 11, 2005.

7. Ethiopia - Agreement for Cooperating in the Global Learning and Observations to Benefit the Environment (GLOBE) Program

Environmental Cooperation: GLOBE Program

Agreement signed at Addis Ababa August 24, 2005; entered into force August 24, 2005.

8. Sweden - Agreement for Cooperation in Environmental Protection in Defense Matters

Defense: Cooperation

Agreement signed at Stockholm and Washington November 23 and December 6, 2005; entered into force December 6, 2005.

9. Mexico - Agreement to Promote Technical Cooperation in Environmental and Natural Resource Areas

Peace Corps

Agreement signed at Mexico City June 13, 2006; entered into force June 13, 2006.

10. Paraguay - Agreement Concerning the Establishment of a Tropical Forest Conservation Fund and a Tropical Forest Conservation Board

Conservation: Tropical Forests

Agreement signed at Asuncion June 7, 2006; entered into force July 17, 2006.

11. Botswana - Agreement Concerning the Establishment of a Tropical Forest Conservation Fund and a Tropical Forest Conservation Board

Finance: Tropical Forest Conservation

Agreement signed at Gaborone October 5, 2006; entered into force November 19, 2006. With annex.

12. Paraguay - Agreement Concerning the Establishment of a Tropical Forest Conservation Fund and a Tropical Forest Conservation Board

Conservation: Tropical Forests

Agreement signed at Asuncion June 7, 2006; entered into force July 17, 2006.

13. Costa Rica - Agreement Regarding a Debt-for-Nature Swap Program Under the US Tropical Forest Conservation Act

Finance: Tropical Forests

Agreement signed at San Jose September 13, 2007; entered into force September 13, 2007.  And agreement amending the agreement signed at San Jose September 25 and 26, 2007; entered into force September 26, 2007.

14. Costa Rica - Agreement Regarding a Debt-for-Nature Swap with Respect to Certain Debt Owed by the Central Bank of Costa Rica to the Government of the United States

Finance: Tropical Forests Restructuring of Debt

Agreement signed at San Jose September 13, 2007; entered into force September 13, 2007.  With schedules.  And agreement amending the agreement.  Signed at San Jose September 25 and 27, 2007; entered into force September 27, 2007.

15. Peru - Agreement Concerning the Establishment of a Tropical Forest Conservation Fund and Administering Board

Conservation: Tropical Forests

Agreement signed at Washington September 18, 2008; entered into force September 18, 2008. With annex.