The Democrat-controlled Congress has failed to pass anything like Green New Deal regulatory, tax, or spending legislation. The Supreme Court may repudiate the legal theory underpinning the Obama Environmental Protection Agency’s Clean Power Plan. High energy prices are a feature, not a bug, of progressives’ war on fossil fuels, but skyrocketing energy prices are an immense political liability for Democrats heading into the midterm elections, and help finance Putin’s war of aggression against Ukraine.
Given those developments, the Biden administration is unlikely to deliver on its nationally determined contribution (NDC)—the president’s emission-reduction pledge under the Paris Agreement—to cut U.S. greenhouse gas emissions by 50-52 percent below 2005 levels by 2030.
Congressional champions of affordable energy and American prosperity should start planning now to unplug America from the growth-chilling anti-energy Paris Agreement. A convenient way to frame the key arguments is through a sense of Congress resolution. What follows is a template for such an effort.
Expressing the Sense of Congress on the Paris Agreement
Whereas the Paris Agreement is a global framework for pressuring U.S. policy makers and companies to achieve NetZero emissions by 2050;
Whereas achieving NetZero by imposing a carbon tax—the most efficient emission-reduction policy according to many economists—would annually cost $4.4 trillion or 11.9 percent of GDP or $11,300 per person by 2050, according to a recent study in Nature;
Whereas the NetZero agenda entails geopolitical risks, making America more dependent on Russia and OPEC for hydrocarbons and on China for the energy transition minerals used to produce advanced batteries, wind turbines, and solar panels;
Whereas participation in the Paris Agreement makes U.S. energy policy less accountable to voters and more beholden to foreign leaders, multilateral bureaucrats, and politically unaccountable non-governmental organizations;
Whereas the Paris Agreement purports to impose legally binding reporting requirements on its parties to facilitate “naming and shaming” of U.S. policy makers who fail to pledge or implement “ambitious” emission-reduction targets;
Whereas sensible people do not join clubs designed to pressure, cajole, and shame them into acting against their own best interests and better judgment;
Whereas the Paris Agreement requires revisiting energy-suppressing emission-reduction pledges every five years, in perpetuity, with each revision required to reflect the party’s “highest possible ambition;”
Whereas the vast majority of parties to the Paris Agreement submitted the agreement to their legislatures for ratification as a treaty;
Whereas Article II, Section 2, Clause 2 of the U.S. Constitution states that the President “shall have power, by and with the consent of the Senate, to make treaties, provided two-thirds of the Senators present concur;”
Whereas Presidents Obama and Biden enrolled the United States into the Paris Agreement without seeking the Senate’s advice and consent;
Whereas the Constitution requires a higher level of consent to make treaties than to appoint Supreme Court justices, which requires only the concurrence of simple majorities in the Senate;
Whereas the Treaty Clause’s supermajority requirement helps ensure U.S. treaties have broad public support rather than just the support of one party or certain sections of the country;
Whereas the Framers intended the Treaty Clause to check executive power, because “interests of so delicate and momentous a kind, as those which concern [the nation’s] intercourse with the rest of the world” should not be entrusted “to the sole disposal” of one magistrate (Federalist 75);
Whereas the Paris Agreement is a treaty by virtue of its costs and risks to the nation as a whole, dependence on subsequent legislation by Congress, potential impacts on state laws, past U.S. practice as to similar agreements, and other traditional factors set forth in the State Department’s Circular 175 Procedure;
Whereas President Obama purported to join Paris as an executive agreement—as if the “most ambitious climate change agreement in history” were of no greater concern to the Senate than the bilateral executive agreements signed by President George W. Bush to promote environmental education in Niger, Ethiopia, and the Republic of Congo;
Whereas the Senate must independently assess whether the potential costs and risks of a particular agreement are sufficiently “momentous” to warrant review under the Article II process, or else the President may evade constitutional scrutiny, as President Obama did, by unilaterally declaring a controversial agreement to be a non-treaty: Now, therefore, be it
Resolved: That it is the sense of Congress that:
- The Paris Agreement is a signed but non-ratified treaty, and as such creates no legal obligations for the United States.
- The NDC communicated by the United States to the U.N. Climate Secretariat is a Biden administration policy proposal with no official status under either U.S. or international law.
- Senate leaders should schedule a debate and vote on whether President Biden should submit an instrument of ratification for the Paris Agreement to the U.N. Climate Secretariat.
- If fewer than two thirds of senators present vote in favor of ratification, President Biden should inform the U.N. Climate Secretariat that America is not a party to the Paris Agreement, and never has been.