First of all, no reasonable negotiating party should have credited the legitimacy of the last-minute acceptance of Paris in the first place. President Obama moved forward with the agreement despite an unprecedented Supreme Court stay of the rules, known as the Clean Power Plan, that were to serve as the U.S.’s principal means of compliance. As all parties were aware, the stay in West Virginia, et al. v. EPA showed that the rules faced a substantial likelihood of being struck down as unlawful.
Other factors arguing against the Paris agreement’s legitimacy include the express objective of its advocates to deliberately circumvent Congress by simply claiming that it isn’t a treaty. This despite the fact that all parties were aware that the Constitution’s Article II, Section 2, Clause 2 “advise and consent” requirement covers all international commitments meeting certain tests, developed over two centuries of custom and practice. The Paris agreement is clearly a treaty by any reasonable definition, and was ratified as such by most parties. The White House even went so far as to call it “the most ambitious climate change agreement in history.” Surely an agreement that is more ambitious than any preceding climate treaty (e.g., the Kyoto Protocol) is itself serious enough to be considered a treaty.
Allowing the executive branch to usurp the Senate’s shared role in our constitutional treaty process for treaties that cannot survive that deliberately rigorous test sets a dangerous precedent. That any such pending deal cannot pass muster under our ratification process is not an argument to ignore that process, as Obama’s Secretary of State implied, but to vigilantly protect it.
Add to this the costs of Paris’s enormous wealth transfers and economic cost from imposing less efficient, more expensive energy, and it is clear why the Obama administration and its negotiating partners resolved to keep the peoples’ elected representatives out of the equation. That does not mean they are entitled to the final word.
Initiatives pursued by any White House through a unilateral “pen-and-phone” strategy are subject to reversal by a subsequent president using the same techniques. Thus, for President Trump to effectively extricate the U.S. from the expectations of implementing the Paris treaty, the only real option is to withdraw the United States as a party to the 1992 United Nations Framework Convention on Climate Change (UNFCCC).
The Framework Convention is a voluntary agreement that purported only to cover emissions through the end of the 1990s. The Paris agreement now seeks, implausibly, to extend those expectations with mandatory pledges of more stringent cuts, increased every five years in perpetuity, not once requiring Senate approval.
This brazenly defies the express instructions the Senate gave when it ratified the UNFCCC, and the deal struck with President George H. W. Bush in order to join, both of which were meant to ensure that the Framework Convention would not become the blank check for avoiding a lack of political support it has now become. With the parties to the UNFCCC having walked away from whatever remained of the terms agreed to twenty-five years ago, the U.S. must formalize this abandonment by withdrawing.