How Migratory Birds Could Save the Paris Agreement From the Supreme Court

The death of Antonin Scalia may have spared the historic agreement from a premature demise, but its constitutional underpinnings are still in jeopardy.
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(Photo: Bill Gracey/Flickr)

(Photo: Bill Gracey/Flickr)

In December, nearly every country on the planet came together in Paris for a historic deal to cut carbon emissions and beat back the rising tide of climate change. Now, the Supreme Court threatens to tear it all down.

Last week, the Supreme Court barred the Obama administration from implementing any part of its Clean Power Plan, the core of the United States' carbon emissions pledge that was the centerpiece of the Paris Agreement, until lower courts can determine whether the Environmental Protection Agency actually has the legal authority to follow through on the administration's commitment in Paris. In their plea to the Court for a temporary hold, nearly 30 states argued that the slate of regulations in the administration's carbon emissions plan would be an unconstitutional abrogation of state sovereignty; the "EPA would no longer be an environmental regulator but rather the nation's central planning authority," as NBC News reports. The stay, issued by the court, indicated that a majority of justices would likely strike down Obama's plan.

But with the death of Supreme Court Justice Antonin Scalia on Saturday, the Clean Power Plan has been spared its doomed fate. As Jonathan Chait notes, Scalia's absence reduces the court to a veritable four-to-four split, meaning the conflict over the Paris Agreement's implementation at home will be decided by a Democrat-heavy D.C. Circuit panel, which will likely uphold the new EPA regulations without the risk of the court striking it down. "Modern conservative legal doctrine has moved toward a form of aggressive judicial activism, devising—or, more precisely, resurrecting—theories that allow the Court to strike down vast swaths of laws conservatives find objectionable," Chait writes. "Activist Courts require a majority. That is now gone."

Does the federal government have the legal authority to enforce climate change agreements at home?

But despite the change in the political calculus, the constitutional tension over states' rights could have far-reaching consequences for both the Paris Agreement and any future climate change accords. If the U.S., historically one of the world's leading producers of carbon emissions, can only offer a symbolic proposal without actually implementing it at home, the entire Paris arrangement falls apart.

"If the U.S. Supreme Court actually declares the coal power plant rules stillborn, the chances of nurturing trust between countries would all but vanish," Center for Policy Research fellow Navroz Dubash told the New York Times. "This could be the proverbial string which causes Paris to unravel." With air pollution killing nearly 5.5 million people worldwide annually, a stumble in reducing carbon emissions by 2030 will be damaging not just as an environmental disaster, but also as a public health issue. Scalia's death effectively kicks the Constitutional challenge down the road until another conservative justice (likely the only option the Republican Senate will allow) restores the bench to full strength. But the core question remains: Does the federal government have the legal authority to enforce climate change agreements at home?

The answer: Yes, but only sort of. That's where a 100-year-old treaty on birds comes in.

In 1918, Congress empowered the Department of State to negotiate a treaty with the United Kingdom (on behalf of Canada) to establish and enforce new protections for migratory birds in North America. It may sound completely random and inane, but the treaty itself was part of a larger constitutional gambit, a direct reaction to several states rejecting congressional restrictions on bird hunting on the grounds that the federal government lacked any enumerated power to legitimately regulate bird behavior (which was true). The resulting Migratory Bird Treaty Act of 1918, which required the federal government to enact essentially the same laws states had rejected in the first place, was not well received: Missouri cried foul, and the case went to the Supreme Court.

The subsequent ruling in Missouri v. Holland had two major consequences for American constitutional law: It gave us the first reference to the "living constitution" in Justice Oliver Wendell Holmes' lyrical majority opinion, and it ensured the U.S. can enforce treaties over the objections of states. The ruling established that treaties are to be considered the "supreme law of the land," which means laws enacted by the federal government pursuant to international obligations can trump state concerns over enumerated powers or states' rights. It effectively made international treaties a workaround to that pesky issue of the 10th Amendment: If a treaty says it's law, then it's the law of the land in the U.S as well.

There are some obvious exceptions rising from the facts of a case—most recently in Bond v. United States, where the Court sidestepped the issue of treaties when considering the prosecution under the Chemical Weapons Convention of a jilted lover who tried to poison her ex-husband's pregnant wife—but this is the core constitutional principle that ostensibly protects the EPA's implementation of the administration's Clean Power Plan as outlined in the Paris agreement.

The late Supreme Court Justice Antonin Scalia. (Photo: Alex Wong/Getty Images)

The late Supreme Court Justice Antonin Scalia. (Photo: Alex Wong/Getty Images)

Here's the rub: While the executive branch can use treaties to essentially legislate in areas not explicitly enumerated in the Constitution (and has on non-bird topics since 1918), it's unclear if the Court will embrace the treaty precedent detailed in Holland. For one, the Paris Agreement isn't technically a treaty to which the federal government is party, but is rather an executive agreement.

If the Obama administration wanted to enact a full-blown treaty, it would—in accordance with Article II, Section Two, Clause Two of the Constitution—require the "advice and consent" of a supermajority in the Senate. Given how Republican lawmakers have committed their political strength to obstruction in the last seven years, the ratification of a Paris treaty seems just as unlikely as the House and Senate passing a treaty independently. But the administration can unilaterally use an executive agreement "on a constitutional basis other than with the advice and consent of the Senate," like, say, addressing the national security threat of global warming. No obstruction, no problem, and it's a legally valid practice that stretches as far back as George Washington.

"On a constitutional basis," in this case, means proving that the Paris agreement has force in the U.S. under the Holland precedent even though it's not technically a treaty. This will likely be the most significant legal challenge for the Obama administration should any climate change agreement, Paris or otherwise, rise to the level of the Supreme Court. After all, in 1840, Holmes v. Jennison established that treaties and agreements "cannot be construed as synonymous with one another" in the process of judicial review. This means that, while both treaties and agreements are binding, "regardless of whether an international agreement is called a convention, agreement, protocol, accord, etc.; if it is submitted to the Senate for advice and consent, it is considered a treaty under United States law." The Obama administration would have to argue that the Paris agreement constitutes a treaty (and enjoys the jurisprudential backing of the Holland precedent) without offering it up to the Senate under that label.

Of course, this whole line of questioning is a moot point—for now. With Scalia's passing, the challenge of navigating a global catastrophe with a Senate whose Environment and Public Works Committee chair is a climate change denier has been kicked down the road. And it's unclear when the Court will actually tackle this question: In Bond, the Court whiffed on a narrower interpretation of the treaty question, and the Obama administration has argued that the Clean Air Act and the United Nations Framework on Climate Change signed by former President George H.W. Bush are all the authority the government needs, per the Washington Post—a maneuver designed to avoid provoking a response from the Supreme Court. But it can, and will, come up again, both from future international climate agreements and state objections to their enforcement domestically.

Whoever fills Scalia's seat has the potential to fundamentally define the impact of international agreements on domestic affairs—and that will shape the course of climate change more than the Paris agreement alone ever will.

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"Catastrophic Consequences of Climate Change" is Pacific Standard's aggressive, year-long investigation into the devastating effects of climate change—and how scholars, legislators, and citizen-activists can help stave off its most dire consequences.

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