In Paris next year, the nations of the world are supposed to hammer out an global regime to control energy production as a way to prevent possible catastrophic climate change. Having covered United Nations climate negotiations for more than two decades, I can confidently predict that there is no way that countries will adopt a comprehensive treaty that somehow legally binds them to make specific cuts in their greenhouse gas emissions. As evidence, consider that when the Kyoto Protocol emissions limits chafed, many countries, e.g., Canada and Japan, simply ignored them and dropped out of the treaty.
Now the New York Times is reporting that President Barack Obama is working on a "politcally binding" international agreement to limit the emissions of greenhouse gases produced largely by burning fossil fuels. Such an agreement would be an end run around the pesky constitutional requirement that treaties must be ratified by two-thirds vote of the Senate. As the Times explains:
In seeking to go around Congress to push his international climate change agenda, Mr. Obama is echoing his domestic climate strategy. In June, he bypassed Congress and used his executive authority to order a far-reaching regulation forcing American coal-fired power plants to curb their carbon emissions….
American negotiators are instead homing in on a hybrid agreement — a proposal to blend legally binding conditions from an existing 1992 treaty with new voluntary pledges. The mix would create a deal that would update the treaty, and thus, negotiators say, not require a new vote of ratification.
Countries would be legally required to enact domestic climate change policies — but would voluntarily pledge to specific levels of emissions cuts and to channel money to poor countries to help them adapt to climate change. Countries might then be legally obligated to report their progress toward meeting those pledges at meetings held to identify those nations that did not meet their cuts.
"There's some legal and political magic to this," said Jake Schmidt, an expert in global climate negotiations with the Natural Resources Defense Council, an advocacy group. "They're trying to move this as far as possible without having to reach the 67-vote threshold" in the Senate.
President Obama seems to be following a script laid out in May, 2014 by former Undersecretary for Global Affairs Timothy Wirth, who was the Clinton Administration's lead negotiator for the Kyoto Protocol, and former South Dakota Senator Thomas Daschle who astutely asserted that "the international community should stop chasing the chimera of a binding treaty to limit CO2 emissions." They further noted that more than two decades of U.N. climate negotiations have failed because "nations could not agree on who is to blame, on how to allocate emissions, or on projections for the future."
Wirth and Daschle are advocating that the climate negotiators adopt a system of "pledge and review" at the 2015 Paris conference of the parties to the UNFCCC. In such a scheme nations would make specific pledges to cut their carbon emissions, to adopt clean energy technologies, and to wring more GDP out of each ton of carbon emitted. The parties would review their progress toward reducing greenhouse gas emissions every three years and make further pledges as necessary to achieve the goal of keeping the increase in average global temperature under 2°C. Since there would be no legally binding targets, there would be no treaty that would require politically difficult ratification. If insufficient progress is being made by 2020 they argue that countries should consider adopting globally coordinated price on carbon.
Wirth and Daschle have joined the emerging consensus that schemes to prevent climate change by rationing carbon – e.g., imposing a cap-and-trade scheme or taxation - are doomed to failure. Why failure? Because of the "iron law of climate policy" argues University of Colorado political scientist Roger Pielke, Jr. Pielke's iron law declares that "when policies focused on economic growth confront policies focused on emissions reductions, it is economic growth that will win out every time." People and their governments are very reluctant to give up the immediate benefits of economic growth – more goods and services, jobs, better education and improved health - that access to modern fuels make possible in order to avert the distant harms of climate change.
In any case, President Obama evidently believes that addressing the climate "crisis" is far more important than observing constitiutional niceties like senatorial "advice and consent" to treaties.