Presumptive President-elect Joseph R. Biden reiterated his vow Saturday to reenter the Paris climate agreement on the first day of his administration, but that could become a problem if the accord’s foes can ferry it to the Senate first.
Conservatives behind the scenes are seeking to foil his plans by persuading President Trump to transmit the 2015 agreement to the Senate for ratification, thus treating the accord as Republicans say it should have been handled all along: as a treaty.
“This preserves President Trump’s legacy, and this also puts a huge obstacle in the way of Biden’s agenda,” said Myron Ebell, director of the Center for Energy and Environment at the free-market Competitive Enterprise Institute, which has opposed the accord.
The Paris agreement — or, as Mr. Ebell calls it, the “Paris climate treaty” — was accepted by President Obama via executive order in September 2016 over the objections of Republicans, who argued that the agreement was a treaty, which would require a two-thirds Senate vote to ratify, which would not happen.
Mr. Trump followed the rules built into the Paris document to withdraw from the accord, an exit that became official on Nov. 4, and the Biden camp has indicated that rejoining the pact would require nothing more than another executive order.
If Mr. Trump transmits the agreement to the Senate after the start of the next Congress on Jan. 3, however, then foes of the accord suddenly have a potent new legal argument to block a Biden effort to enter the agreement via executive action.
“It would mark the Paris accord as a treaty that needs to be ratified by the Senate,” said Steve Milloy, publisher of JunkScience.com and a former member of the Trump transition team at the Environmental Protection Agency.
The maneuvering comes with Mr. Biden doubling down Saturday on his pledge to reenter the agreement, which seeks to limit the increase in global temperatures by well below 2 degrees Celsius from pre-industrial levels.
“The United States will rejoin the Paris agreement on day one of my presidency,” Mr. Biden said as international leaders gathered virtually to celebrate the fifth anniversary of the accord. “I’ll immediately start working with my counterparts around the world to do all that we possibly can, including by convening the leaders of major economies for a climate summit within my first 100 days in office.”
Mr. Biden also reemphasized his campaign promise to achieve net-zero U.S. greenhouse-gas emissions by no later than 2050.
Capturing Mr. Trump’s attention as the Republican continues to challenge the November election result will be difficult, but if his avenues to 270 electoral votes dry up, Paris accord opponents are counting on him to turn his attention to his legacy.
Under the Constitution, a treaty requires a two-third majority vote, which is why President Clinton never submitted the previous climate pact, the 1997 Kyoto Protocol, for ratification.
“Obama did it [Paris] as an executive order to avoid having it defeated in the Senate,” Mr. Milloy said. “That’s why Clinton never transmitted the Kyoto Protocol to the Senate, because it would have been defeated.”
Even if Democrats capture both Georgia Senate seats to gain a chamber majority, and swing a few votes from moderate Republicans, nobody thinks they could cobble together enough votes to clear the two-thirds hurdle.
Senate Majority Leader Mitch McConnell could bring the Paris accord to the floor for a vote — and have it defeated — or simply sit on it. Either way, a Paris climate treaty would fail to win ratification.
“If it went over there in January in the next session of Congress, it would just sit there as a treaty,” Mr. Milloy said. “Even if the Democrats won control of the Senate, it would have still been submitted to the Senate. No one would bring it up because it would fail. You need two-thirds of the Senate.”
Paul Driessen, senior policy adviser for the free-market Committee for a Constructive Tomorrow [CFACT], said Mr. McConnell should force senators to go on the record.
“Mr. Trump could and should submit the treaty to the Senate for its advice and consent — and Senate Majority Leader Mitch McConnell should quickly schedule a debate and vote,” Mr. Driessen said in a Dec. 9 op-ed. “Every senator will have an opportunity to go on record: for or against a treaty that would make the United States, and every individual state and family, subjects of unelected, unaccountable U.N. and foreign powers.”
If the strategy worked, a Biden administration could still seek to work around the lack of ratification by, for example, entering into a separate agreement or making commitments as an unofficial party.
“There are ways around it, but I don’t think any of them are very satisfactory, and I don’t think any of them are necessarily going to work very well,” Mr. Ebell said.
The Center for Biological Diversity and other environmental groups argued in 2016 that the Paris accord could be entered into legally by executive order, saying Senate ratification was “not necessary for the Obama administration to commit the U.S. to a legally binding form.”
“In fact, due to the extraordinarily high bar for Senate ratification in the U.S., about ninety percent of international treaties executed by the U.S. in the last sixty years have taken the form of executive agreements,” the center said in a fact sheet.
Supporters have also pointed out that the international agreement is non-binding, but foes worry that the Biden administration and environmental groups would use it as a cudgel to enact sweeping climate-change restrictions through the U.S. court system.
“The question is, will the Biden administration then use it as the legal justification for another round of very economically and very costly damaging regulations? And it seems to me that they will,” Mr. Ebell said. “They’ll go to court and say, it’s true Congress hasn’t passed a law to reduce emissions, but we’ve got this international agreement, and we’re a party to it and it requires us to keep our commitments, and therefore this is the way we propose to do it.”
Under the agreement, the U.S. agreed to reduce emissions by 26% to 28% below 2005 levels by 2025. That threshold had not been reached, even though the U.S. leads the world in reducing carbon-dioxide emissions, and the agreement requires a more ambitious commitment every five years.
Increasing the U.S. climate goal to, for example, a 50% emissions reduction by 2035 would require sweeping changes to the energy sector, which could include eliminating coal-fired power plants, replacing natural gas with renewables, and switching out gasoline-powered cars with electronic vehicles.
The Biden energy and climate plan also calls for an ambitious overhaul of the energy grid, but it’s one thing to enact such policies through the legislative process.
“That’s a huge change, and they’ll be attempting to do it on the basis of essentially an international agreement that doesn’t have the support of the U.S. Senate and consequently doesn’t have the support of the U.S. people,” Mr. Ebell said. “They won’t have any legislative authority, but they might try to get away with it because they’ve got this piece of paper called the Paris accord.”
• This article was based in part on wire service reports.