Now that negotiators from around the world have struck a historic deal to address climate change, the big question is whether Congress can screw it up. The House and Senate could try to derail the process with two potential moves, one legislative and one financial.
THE LEGISLATIVE STRATEGY
The Constitution grants the Senate the authority to review and approve all treaties, but the president can sign executive agreements without asking for permission. Before the Paris conference began, onEarth explained how the administration would manage this trick. Now that we have an agreement, we can review some of the tactics the drafters used and consider whether they will work.
The State Department’s legal theory is that international agreements lacking new and material legal obligations are not treaties under United States law, and therefore need not undergo the Senate’s advice and consent process. Avoid new legal obligations, and you can avoid the Senate.
The heart of the Paris agreement—Article 4, in which the parties commit to limiting greenhouse gas emissions—exemplifies this approach. There’s no mention of “intended nationally determined contributions” (INDCs), the carbon reduction pledges each country submitted before the Paris conference. They’re merely referenced, with each country maintaining the “aim of achieving the objectives” of the INDCs (emphasis added).
“That’s code for ‘not legally binding,’” says Julian Ku, a law professor at Hofstra University. “It’s something we’re trying to do but not promising to do.”
Other portions of the Paris agreement contain legally binding language, but they are carefully drafted to reflect pre-existing obligations the U.S. agreed to in the 1992 United Nations Framework Convention on Climate Change, which President George H.W. Bush signed and the Senate ratified. The Paris agreement, for example, states that the parties “shall” develop plans to reduce greenhouse gas emissions. A nearly identical commitment appears in Article 4 of the UNFCCC. Similarly, the Paris agreement states the parties “shall” report their emissions and “shall” use robust accounting measures—both obligations under the UNFCCC.
Compare that with Article 5 of the Paris agreement, which says signatories “should take action” to protect carbon sinks and “are encouraged” to create incentives for forest preservation. That’s more code for “not legally binding” because those commitments aren’t explicit in the UNFCCC.
Even with these linguistic tweaks, the Obama administration isn’t home free. The legitimacy of an executive agreement has rarely been challenged in court, so it’s hard to predict how the Supreme Court would settle a dispute. The good news, for President Obama and people who care about climate change, is that judges dislike mediating arguments between the executive and legislative branches of government, particularly when it comes to matters of foreign policy. Ku points to the 1981 case of Dames & Moore v. Regan, in which the court reluctantly let stand President Carter’s backroom deal to free U.S. hostages in Iran in exchange for releasing impounded assets. If the Supreme Court can punt, it probably will.
THE FINANCIAL STRATEGY
In Paris, the U.S. and other developed countries promised to provide funds to support climate change mitigation and adaptation in the developing world. Those commitments are too vague to trigger the advice and consent requirement, but there’s still the small problem of actually delivering the money.
While the Constitution vests tremendous foreign policy authority in the executive branch, Congress controls the purse. Senate Republicans have been promising for weeks to block any funds that President Obama attempts to commit to climate change initiatives.
The president has a certain amount of independent budget authority. The State Department, for example, has many millions of uncommitted dollars that it can direct to nearly any project. Current law likely permits the administration to send that money to the Green Climate Fund or other international mitigation and adaptation initiatives.
If Congress wants a fight, though, it could slap a rider onto legislation barring the administration from using any money—including the State Department funds—to help address climate change in the developing world. Senate Republicans, led by Mitch McConnell, have already begun to push for such a prohibition. So far, the efforts have failed, but the issue will return.
Stay tuned as the fight to save our civilization pivots from Paris to Capitol Hill.