Obama’s empty climate agreement

Paris is Copenhagen all over again — more presidential climate change grandstanding without concrete results.

By DAVID B. RIVKIN JR. & ANDREW M. GROSSMAN, 10 December 2015 in USA Today

The world is watching as diplomats in Paris hammer out the final details of a new climate agreement involving over 150 countries. The goal, said President Barack Obama, is “an agreement where … each nation has the confidence that other nations are meeting their commitments.”

But the world’s attention may be misplaced. There is no reason to believe that this agreement will conclude any differently from the last three, with nations reneging on commitments to drive down greenhouse gas emissions and to provide billions of dollars in foreign aid to finance reductions in the developing world.

That’s a big problem for the president: reciprocity has always been Congress’s chief concern when it comes to climate-related measures that threaten to drive up energy prices and sap the United States’ international competitiveness. The lack of binding commitments for developing nations like China and India is a big part of what killed consideration of one previous agreement, the Kyoto Protocol, in the Senate. And that, as well as general opposition to new greenhouse emissions regulations by congressional Republicans, presages the same result in Congress this time around.

Despite the messaging coming from the White House, as a legal matter, the president actually does need Congress’s support to complete any kind of meaningful deal. That legal reality is having serious consequences in Paris, where U.S. participation in the final deal is an overriding imperative. For one, it rules out any firm financial commitments. The Constitution, after all, assigns the power of the purse to Congress, and so the president cannot, on his own, set the U.S. foreign aid budget for years into the future.

Likewise, the president cannot unilaterally commit the US to binding emission-reduction targets. The Senate and executive branch have both understood for years that any “targets and timetables” for emissions must be put to a ratification vote. When the Senate ratified the United Nations Framework Convention on Climate Change in 1992, it extracted a promise from the George H.W. Bush administration to that effect. And when President Bill Clinton signed the Kyoto Protocol in 1997, it was failure to secure Senate ratification that blocked the U.S. from becoming a party and stopped it from becoming binding under U.S. law. In foreign-affairs law, these are extraordinarily strong precedent for the proposition that any binding reductions must be put to Congress.

The Obama administration’s solution to these seemingly intractable problems is to structure the deal as what it calls a “hybrid agreement.” Under this approach, only measures dealing with emissions reporting would be binding on parties. The rest would constitute what diplomats call “political commitments” — in other words, empty promises that are not legally enforceable. In short, the agreement will contain little in the way of substance.

That is not, however, how it will be touted to the American people. The administration, having identified the Paris agreement as a key plank of the president’s “climate legacy,” has sent a gaggle of senior officials to the negotiations and launched an all-out publicity barrage. The chief focus so far has been on the agreement’s longwinded aspirational language, including the likely-to-be-declared long-term goal of “decarbonisation of the global economy over the course of this century.” But that, like the other “commitments,” will have all the legal force of a fortune cookie message.

For those participating in the Paris talks, there should be a sense of déjà vu. The negotiations over the 2009 Copenhagen Accord marked the Obama administration’s climate-diplomacy debut, and the United States played a lead role in drafting the deal. Its key provisions? Aid payments to to developing nations and “quantified economy-wide emissions targets.” President Obama called it “meaningful and unprecedented breakthrough.” Structured to avoid the need for ratification, the accord was not legally enforceable and quickly came to be viewed, on its own terms, as a complete failure.

One that the president appears determined to repeat in Paris.

David B. Rivkin, Jr., who served in Republican administrations, and Andrew M. Grossman, who previously worked at The Heritage Foundation, are attorneys at Baker & Hostetler. 

Source: http://www.usatoday.com/story/opinion/2015/12/10/paris-climate-change-constitution-treaty-column/76676732/

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