President Obama will soon agree to a global warming treaty at the United Nations climate conference in Paris. While he’ll hail it as an historic moment, he will insist it isn’t really a treaty. Why?
Mr. Obama’s reasoning is simple: An earlier international greenhouse gas emissions agreement called the Kyoto Protocol was doomed because it never received the two-thirds Senate approval that the Constitution requests for treaties. Now the administration wants to avoid that fate, seeking to use this new agreement to prevent the Environmental Protection Agency’s (EPA) costly — and apparently illegal — global warming regulations from being overturned.
Like this Paris non-treaty, the EPA’s rules circumvent the proper democratic process, which killed the Obama climate agenda in Congress.
If the Senate stands idly by and fails to reassert its role in the treaty process, it will be complicit in the erosion of our system of checks and balances so carefully crafted by the Founding Fathers, with consequences far beyond climate policy.
The upcoming Paris conference will amend a non-binding treaty, the United Nations Framework Convention on Climate Change (UNFCCC), which the United States ratified in 1992. Under the new Paris agreement, the United States will join other countries in agreeing to targets and timetables for reducing carbon-dioxide emissions, promising to review and tighten them every five years.
The perpetual and ever-constricting reductions Mr. Obama will promise in Paris are of emissions from our most reliable, affordable energy sources. What about China and other large emitters? They vow to double their emissions by 2030, as they seek economic growth.
The Democratic-controlled Senate back in 1992 saw this coming from a mile away when it approved the UNFCCC treaty on an express understanding, laid out by the Senate Foreign Relations Committee, “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.” That is, Paris is a treaty, requiring Senate ratification.
But in the climate arena, agreements made today mean nothing tomorrow when those deals stand in the way of the movement’s agenda.
For example, the Paris agreement fulfills the 2011 vow in the Durban Platform for Enhanced Action that Paris will beget “a protocol, another legal instrument or an agreed outcome with legal force,” which would clearly call for the Senate to perform its “advice and consent” role in the treaty process. To avoid this constitutional check on its agenda, the administration now promises that Paris is “not legally binding” after all. Nothing to see here, Senate, move along.
The rationale — because Mr. Obama says so — is not compelling and the Senate must assert its constitutional advice-and-consent function in advance of Paris. Fortunately, doing so is not only easy but in the self-interest of the majority of lawmakers, who want to undo the EPA’s climate rules.
Mr. Obama’s plan after Paris is to claim that these rules cannot be upset because they are now part of something larger, a promise to the world. In effect, the administration seeks to create international political pressure to box in Congress — and the next administration.
Undoing these rules will be much harder if the Senate fails to make clear in advance that any Paris commitments are no more than executive freelancing, absent ratification.
The Senate must simply assert the agreed fact that Paris fulfills the Durban Platform’s vow “to develop a protocol, another legal instrument or an agreed outcome with legal force under the UNFCCC.”
Next, it should reaffirm that the Senate ratified the Convention on Oct. 7, 1992, on the basis of the deal asserted by the Foreign Relations Committee.
Finally, it should note that the 1992 deal still holds.
The Senate must affirm these three historical facts. Then lawmakers should resolve that any decision pursuant to the Durban Platform — as Paris inescapably is — or any decision by the Conference of the Parties meeting in Paris to adopt targets and timetables — which Paris is as well — must be submitted to the Senate for its advice and consent before the United States can accede to the agreement.
It is time for the Senate to engage.
• Chris Horner is a senior fellow with the Competitive Enterprise Institute.