- - Sunday, March 8, 2015

ANALYSIS/OPINION:

The United Nations Framework Convention on Climate Change (UNFCCC) recently circulated an email breathlessly titled, “Governments on Track to Reaching Paris 2015 Universal Climate Agreement — Negotiating Text Officially Published.”

The message triumphantly claimed that “Another key step towards a new, universal climate change agreement has just been taken as the negotiating text for the agreement was officially issued by the [UNFCCC].” This refers to the upcoming talks in Paris in December on a successor pact to the 1997 Kyoto global warming treaty.

On the heels of John Kerry chasing Russia’s foreign minister for months to obtain a feckless, non-cease-fire in Ukraine, reckless appeasement of Iran and Cuba, the idea that Obama officials have agreed to anything in the realm of international negotiations is cause for worry.

Could they do worse? It appears that they certainly are trying.

This text agreed to for negotiation by the federal government includes a remarkable proposal. Buried deep inside, it proposes an “International Climate Justice Tribunal in order to oversee, control and sanction the fulfilment [sic] of and compliance with the obligations of Annex I and Annex II Parties under this agreement and the [1992 UNFCCC climate treaty].”

Translated, this means that even if the Obama administration refuses to call the Paris agreement a treaty, as it already telegraphed its position: A new climate court would hold us to its terms — even the terms of a prior, “voluntary” agreement.

This presumably seeks to address the problem our Constitution’s ratification requirement poses to any binding “climate change” treaty. In recent months, the Obama administration has made clear that whatever is agreed to in Paris won’t require two-thirds Senate approval. It will not because the president will say it’s not a treaty.

Do not confuse that with “not binding,” however. Creating a “climate justice tribunal” would purport to undercut such perception, by its own terms. Which is to say: Everyone but President Obama would think the document is, in fact, a treaty.

What “justice” would this climate court enforce? Technically, this is unknown until a final text is presented in December, though the actual purpose is to renew the expired Kyoto Protocol. That pact (a treaty) imposed caps on the use of reliable energy sources (“fossil fuels”) by a handful of countries.

Through clever construction and an overly enthusiastic Al Gore, that document gave Europe a largely free ride while targeting the United States, Canada and Japan. Since then, Canada and Japan (joined by Russia) have excused themselves from any such sucker deals going forward. Not the U.S.

What of the part about this climate court enforcing the 1992 UNFCCC, agreed to in Rio de Janeiro? That was the one that set the whole enterprise rolling by getting the targeted customers, such as the United States, nodding. The Rio treaty was merely aspirational, “non-binding” and “voluntary.” Yet even that required Senate ratification and — being “voluntary” — was approved by the Senate with embarrassing haste in that campaign year.

The Rio pact used the word “shall” 118 times in its commitments. Apparently, it is time to give those terms meaning.

Rio has been amended several times before, including by Kyoto. No one questioned whether those amendments required ratification. Why are we now to allow the president to commit us on his own authority? To a climate court, no less?

In a rational world, rather than alleviating the problem posed by the Constitution’s ratification requirement, even a failed attempt to slip a “climate justice tribunal” into any agreement would fatally wound the enterprise.

This seems to be a proper hook for the Senate to deliberately and forcefully block the administration’s effort to avoid ratification of an obvious treaty on the grounds that Paris won’t include the specific “binding targets and timetables” prohibited by the Senate’s 1997 Byrd-Hagel Resolution.

This move, like the larger Kyoto experiment, clearly has America in its sights. The Senate must forcefully declare that the Paris deal is invalid if it purports to bind us, in any way, without ratification. This breathtaking power grab is cause to act.

That the Obama administration would agree to even negotiate such an entanglement is all the more outrageous given the president’s belief that the Senate’s advice and consent is something necessary only when it works to his political advantage.

The climate court isn’t the entire problem, as any perpetuation of the Kyoto approach is unacceptable — climatically meaningless energy rationing in a few wealthy countries, and further wealth transfers to other nations whose rapid growth is fueling their own spectacular emission increases.

This draft negotiating text, with its effort to create a climate justice tribunal, distills the real objective of the Paris enterprise. The revelation now demands a concerted effort to invalidate beforehand any pact that purports to bind the United States in any way. It is nothing more than executive freelancing and should be undermined in advance. The president may not bind us to treaties without Senate consent, and the United States should not be subject to a climate court.

Chris Horner is a Washington lawyer.

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