What is COP-21?
The 21st session of the Conference of Parties (COP-21) in Paris is a United Nations meeting to adopt a plan requiring greenhouse gas emission reductions by some countries which, according to the Durban Platform, must be “a protocol, another legal instrument or an agreed outcome with legal force” to which all participating countries would abide (although with “common but differentiated responsibilities”). Therefore, inherently, the result of COP-21 will be a treaty.
It will replace the Kyoto Protocol. Kyoto had one five-year compliance period; Paris promises a new and updated emission reduction promise, or INDC, every 5 years. Each new promise is to be “progressive beyond previous commitments” (Paris, Art. 3).
How has the United States been involved?
The Senate ratified the United Nations Framework Convention on Climate Change (UNFCCC) on October 7, 1992 (Treaty Document 102-38). Adoption of that treaty is not authorization for a U.S. administration to make further commitments in the name of amending the treaty.
Instead, the Senate Foreign Relations Committee (SFRC) reported that treaty out to the full Senate with the advice, “The committee notes that 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.”
(Exec. Rept. 102-55, p. 14).
The draft Paris text represents a decision of the COP to adopt targets and timetables. For this reason, and the admission in the Durban Platform, the agreement in Paris at COP-21 would have to be submitted to the Senate for its advice and consent before the terms would be viewed as a commitment by the United States. This ensures that there is no basis for anyone to conclude that Paris commits the U.S. in any way absent ratification by the Senate.
Current American political climate regarding COP 21:
The Obama administration does not intend Paris to be a legal instrument but a political one. It is an effort to protect, or insulate the Environmental Protection Agency’s greenhouse gas regulations; it manifests what Hillary Clinton surely meant when describing these rules as something that "must be protected at all cost". The aim is to seal these highly vulnerable rules in political amber, setting up the post-Paris argument that EPA’s rules cannot be upset, they are part of something larger now and we have promised them to the world.
What should the U.S. do?
Regardless of the Paris proponents’ efforts to avoid Senate ratification, the Senate has the ability to declare that the Durban Platform must be ratified to be in any way binding on the U.S. President Obama can claim he requires no Senate approval, but that’s actually not the case. Circumventing the Senate would complete the circumvention of the democratic process on this matter, by cutting the Senate out of the treaty process just as EPA cut Congress out of the legislative process.
Therefore, the emphasis must be to avert, in advance, the expected claims that other parties reasonably believed that the executive unilaterally committed the U.S. in Paris, and that therefore Congressional disapproval, or judicial overturning of EPA’s rules would somehow contradict reasonable expectations of others as to what President Obama promised.
The claim that COP-21 in any way binds Congress or the next administration is readily neutered, and Congress creates a vastly less difficult road for itself for disapproving EPA’s rules, by the Senate asserting in advance a resolution expressing the majority view that:
- The deal struck in 1992 still holds
- Paris is in fulfillment of Durban
- Paris represents the decision by the Conference of the Parties to adopt targets and timetables that the Senate Committee on Foreign Relations warned about in ratifying UNFCCC.
A sense of the Senate resolution expressing that Paris is to fulfill the Durban Platform, that the SFRC reported UNFCCC to the full Senate with that advice, and that the deal made to obtain Senate ratification of UNFCCC still holds would ensure that there is no basis for anyone to conclude that Paris commits the U.S. in any way absent ratification by the Senate.
It also neuters any notion, unsubstantiated as it is, that Paris requires legislative (or judicial) approval, or abstention from disapproval, of any policy measure. It preempts the political obstacle to disapproving EPA’s rules in which the administration likely places its greatest hopes.