STATEMENT OF CHRISTOPHER C. HORNER TO THE JOINT HEARING OF THE SENATE COMMITTEES ON FOREIGN RELATIONS AND ENVIRONMENT AND PUBLIC WORKS
Mr. Chairman, I appreciate the opportunity to testify before this joint panel on a topic of great importance. The scope of today’s hearing is broad, so I focus my testimony upon the propriety of the U.S. agreeing to amend the UN Framework Convention on Climate Change (UNFCC, or Rio Treaty), by ratifying the Kyoto Protocol.
For whatever specific reasons (economic growth, failure to foresee the energy requirements of the “new economy”, or other), the U.S., like many nations, failed to meet its voluntary Rio targets.
Now some advocates assert, “Because the U.S. has not met its Rio goal, we must commit to even greater mandatory reductions (Kyoto)”. Attempting instead to comply with the initial treaty seems the more appropriate response, for several reasons.
Rio went into force in March 1994. President Clinton did not request, nor did Congress enact, independent legislation implementing Rio, which was not an inherently self-executing treaty. Authority and precedent make clear that responsibility for proposing such programs lies with the White House. If our “non-binding” Rio obligations in fact “bound” the U.S. to achieve specific reductions — contrary to contemporary Senate and Executive assertions of U.S. intent — then the Executive interpretation of Rio Article 4 throughout the 1990s was actually incorrect, and is responsible. The pending question is apparently: does the U.S. respond by attempting to meet such Rio promises, or by making further, even deeper, binding promises?
Skipping specific pursuit of the U.S.’ Rio promises, in favor of Kyoto’s binding commitments even greater than those we’ve failed to attain, seems highly illogical. Compounding this of course is that, precisely five years ago tomorrow, the Senate unanimously spoke to what it recognized was an unacceptable drift away from the U.S. Rio stance adamantly opposed to binding commitments. The Senate, seeing what was developing, asserted its “Advice” pursuant to Article II, Section 2 of the U.S. Constitution, passing S. Res. 98.
Subsequent to and despite this Advice, U.S. negotiators clearly disregarded both major Byrd-Hagel recommendations: Kyoto did not require developing countries to share our commitments, and even the Clinton White House economic advisors have recanted their refutations of the Kyoto cost estimates.
Since then, nothing has emerged to indicate that Kyoto does not still violate both key Byrd-Hagel conditions, and it is likely that very few Senators have amended their position against a treaty causing “serious economic harm.” However, Clinton Administration officials did admit that they began working on the plan for binding commitments within one year after Rio went into effect.
Kyoto, too, is clearly intended to be a similar step in a “treaty hopping” campaign: even the models on which it is based predict an undetectable climatic impact — at a cost to the U.S. of up to $400 billion annually — yet may be 1/30th of what its proponents seek. Rio and Kyoto offer differing commitments but purport “the same ultimate objective.” The UN IPCC has said this means reducing GHG emissions by as much as 60-80%, which wildly exceeds Kyoto’s specified ambitions.
As such the U.S. should require, prior to and as part of ratifying any further agreements, express acknowledgement not only of the actual “ultimate goal”, but that it is committed to its practical requirements, in this case up to “30 Kyotos”.
Such “treaty hopping” agendas illustrate the importance of Senate treaty “reservations”, or the Senate’s second bite at the “Advice” apple. This comes of course during the “Consent” function, which function the U.S. negotiators unfortunately eviscerated. After agreeing to terms incompatible with Byrd-Hagel, the Administration also accepted Kyoto’s prohibition on reservations, or the Senate’s ability to specify the specific understandings or conditions of the U.S. commitment. This despite the Senate also having forewarned the administration about this in advance of Kyoto.
In summation, President Bush ought to match his assertions of having “rejected” Kyoto with the requisite submission to the UN to that effect, as was done regarding the International Criminal Court. In the absence of that act, the White House must at minimum assist resolution of the ambiguous U.S. role in Kyoto by requesting the Senate disapprove of the treaty. In the absence of that, the Senate should recognize that there is no reverse equivalent of the “presentment” clause, regarding treaties. Only protocol, not any constitutional prohibition, impedes Senate consideration of a signed treaty. Certainly given the imperative rhetoric surrounding Kyoto, if President Bush insists on continuing the U.S.’ ambiguous role the Senate should take matters into its own hands, and decide the fate of this agreement.
That resolution should by definition be rejection of Kyoto. Otherwise, by accepting this double indignity of ignoring advice and prohibiting reservations, this body would condone Executive circumvention of the Senate’s constitutional treaty role.
As part of my testimony for the record, I include an article I have prepared for the Federalist Society, though still in draft form, addressing relevant issues surrounding the propriety of ratifying Kyoto, and recommending courses for withdrawal or otherwise pursuing clarification of the U.S.’ ambiguous treaty status. Thank you again for the opportunity to appear.
 In Rio in 1992 the U.S. made, and the Senate unanimously ratified, various commitments regarding reducing greenhouse gas (GHG) emissions, both thematic and with a specific emission target (1990 levels).
 See, e.g., http://unfccc.int/resource/docs/natc/eunc3.pdf. The EU, which under Kyoto has negotiated a “bubble” such that it could pool its increases and “reductions”, announced in May that it met its Rio target. It said it had reduced greenhouse gases by 3.5 percent below 1990 levels in 2000. This is commonly attributed to the ending of coal subsidies in Great Britain in their push to replace coal with gas, shutting down East German industry and that Europe did not match the U.S.’ decade-long economic expansion. Russia, e.g., met its target by regressing economically.
 As the party charged with “making” treaties the Executive is responsible for meeting, or at minimum proposing legislation to affect, treaty commitments. President Clinton proposed a Btu tax, though not expressly in pursuit of Rio. It failed once and did not emerge again. He instituted his Climate Action Plan, which with minor recent modifications continues to this day with more than 50 voluntary programs, though a quick search of Thomas revealed no implementing legislation. Congress did appropriate money in response to proposals by the Executive. See, e.g., “Treaties and Other International Agreements: The Role of the United States Senate”, S. Rpt. 106-71, p.4.
 “Implementation The executive branch has the primary responsibility for carrying out treaties and ascertaining that other parties fulfill their obligations after treaties and other international agreements enter into force, but the Senate or the entire Congress share in the following phases.” “Treaties and Other International Agreements”, p. 12. “A question that may be raised under U.S. law is whether or not Congress has a duty to implement a treaty which is in force internationally, but which requires additional legislation or implementation or an appropriation of funds to give effect to obligations assumed internationally by the United States. When implementation of a treaty requires domestic legislation or an appropriation of funds, only the Congress can provide them.” Id. at pp. 166-67. The FRC Report continues, “The extent of congressional obligation to implement a treaty under U.S. law has not been resolved in principle. FN 61 According to an often-cited authority, Congress has generally responded ‘to a sense of duty to carry out what the treaty-makers promised, to a reluctance to defy and confront the President (especially after he can no longer retreat), to an unwillingness to make the U.S. system appear undependable, even ludicrous…’” Id. at 167, quoting Henkin, Louis. Foreign Affairs and the United States Constitution. 2d ed. 1996, pp. 205-206. The referenced FN 61 says in pertinent part, “[F]ailure to implement an internationally perfected treaty would constitute a violation of obligations assumed by the United States under international law. See Memorandum of April 12, 1976, by Monroe Leigh, Legal Adviser, Department of State, as quoted in U.S. Department of State. Digest of U.S. Practice in International Law 1976. 1977, p. 221.” This begs the question: “to precisely what extent was the “non-binding” Rio binding?
 Addressing the question, above (FN 5), prior to ratification, “[t]he [Senate Foreign Relations] Committee made clear, in other words, its view that ‘[t]he final framework convention contains no legally binding commitments to reduce greenhouse gas emissions’…While these statements may not be as legally binding as a formal condition to the Senate’s ratification of the 1992 Convention [ed: reservations were prohibited by Rio’s terms], it is doubtful that any administration could ignore them.” “Global Climate Change: Selected Legal Questions about the Kyoto Protocol”, p. 4. CRS Report for Congress (March 29, 2001), citing in part 138 CONG. REC. 33521 (Oct. 7, 1992)(statement of Sen. McConnell). To avoid future such uncertainty, in S.Res. 98 (105th Cong., 1st Sess., adopted at 143 CONG. REC. S 8138 (daily ed. July 25, 1997)), the Senate “stated the view that any agreement which would require Senate advice and consent should be accompanied by a detailed analysis of its economic impact and of any legislation and regulations necessary to implement the agreement.” See CRS Report at p. 6, FN 25.
 “In mid-1997, as these negotiations were underway, the Senate passed S. Res. 98 [ed.: “Byrd-Hagel,” S.Res. 98 105th Congress (105-54 July 21, 1997)], which stated that the Senate would not approve any agreement on binding reductions in greenhouse gases that did not include commitments by developing countries as well as developed/industrialized countries, or that would result in harm to the U.S. economy. The administration has not transmitted the Kyoto Protocol to the Senate because, among other reasons, developing countries have to date not been willing to consider making binding commitments regarding their greenhouse gas emissions.” “Treaties and Other International Agreements”, p. 276. The operative language is as follows: “Resolved, That it is the sense of the Senate that–
(1) the United States should not be a signatory to any protocol to, or other agreement regarding, the United Nations Framework Convention on Climate Change of 1992, at negotiations in Kyoto in December 1997, or thereafter, which would–
(A) mandate new commitments to limit or reduce greenhouse gas emissions for the Annex I Parties, unless the protocol or other agreement also mandates new specific scheduled commitments to limit or reduce greenhouse gas emissions for Developing Country Parties within the same compliance period, or (B) would result in serious harm to the economy of the United States”.
 “Economists from the Clinton White House now concede that complying with Kyoto’s mandatory reductions in greenhouse gases would be difficult – and more expensive to American consumers than they thought when they were in charge.” USA Today, 12 June 2001.
 In 1996, Deputy Assistant Secretary of State Rafe Pomerance asserted that “the administration has been working on this policy for more than a year”, quoted in Nature, 25 July 1996.
 See, Testimony of Dr. Sallie Baliunas to the Senate Committee on Environment and Public Works, at http://www.techcentralstation.com/1051/envirowrapper.jsp?PID=1051-450&CID=1051-031302C.
 U.S. Department of Energy, Energy Information Administration, Office of Integrated Analysis and Forecasting. “Impacts of the Kyoto Protocol on U.S. Energy markets and Economic Activity.” Washington, D.C. October 1998.
 “Yet the climate simulations lead to the conclusion that the Kyoto reductions will have little effect in the twenty-first century (15), and ‘30 Kyotos’ may be needed to reduce warming to an acceptable level.’ James Hansen, Makiko Sato, Reto Ruedy, Andrew Lacis, and Valdar Oinas, “Global warming in the twenty-first century: An alternative scenario,” Proceeding of the National Academy of Sciences, August 29, 2000.
Hansen was citing Malakoff, D. (1997) Science 278, 2048.
 “[S]tabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.” See, e.g., Rio Article 2.
 See “Treaties and Other International Agreements,” at 274.
 The President manifested that this is how the United States makes “its intention clear to not become a party to the treaty,” as required by “customary” law and the Vienna Convention Article 18. “[S]ignature by the U.S. does impose an obligation on the U.S. under international law to refrain from actions that would undermine the Protocol’s object and purpose. That obligation continues to apply until such time as the U.S. ratifies the Protocol or makes clear its intent not to do so.” “Global Climate Change: Selected Legal Questions about the Kyoto Protocol”, CRS Report for Congress (March 29, 2001). Though it has not yet done so, precedent indicates the Senate can also effect this outcome by passing a Sense of the Senate expressing disapproval of a signed, not ratified treaty. See, “Withdrawal,” in attached article. U.S. Constitution, Article I, Section 7: “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States”.