Lima, Peru – The United States Senate approved the United Nations Framework Convention on Climate Change (UNFCCC) by a rare division vote with two-thirds concurring on October 7, 1993 and President Bill Clinton ratified the treaty by signing it on October 13, 1993. By agreeing to that treaty the United States committed to the "stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system."
In 1997, on behalf of the United States, Vice-President Al Gore signed the Kyoto Protocol which was the follow-on treaty to the UNFCCC. That treaty would have obligated the United States reduce its greenhouse gas emissions 7 percent below their 1990 levels by 2012. However, in July, 1997 the Byrd-Hagel sense of the Senate resolution had passed 95 to 0 specifically stating that the U.S. should not be a signatory to any agreement pursuant to the UNFCCC that the exempted developing countries from taking on obligations to reduce their greenhouse gas emissions. In addition, the resolution declared that any such agreement would require the advice and consent of the Senate to ratification. Consequently, President Clinton never submitted the Kyoto Protocol to the Senate for a vote. In March, 2001, President George W. Bush sent a letter to members of the Senate explaining why he opposed the Kyoto Protocol and he, too, never submitted it to the Senate for a vote.
Among the tents at the Lima venue for the 20th Conference of the Parties (COP-20) of the UNFCCC, it is clear that negotiators from other countries, activists and journalists are very worried about how any new U.N. climate agreement reached next year in Paris would fare if it had to be submitted for consideration by a Senate soon to be dominated by Republicans. But there are hints that members of the Obama administration believe that that unpleasantness perhaps can be avoided. How?
Next year's Paris agreement could be interpreted by the Obama administration as not being an actual treaty requiring the Senate's advice and consent before ratification. It may instead simply be construed as an elaboration of our already existing obligations to stabilize greenhouse gases under the UNFCCC. If the Paris agreement were more procedural in form, perhaps it could be taken as being merely an extension of the UNFCCC, speculated former Clinton White House environmental aide Elliot Diringer in response to a question during a session at the U.S. Center at the Lima COP-20. In such a case, President Obama might argue that he could implement such a Paris climate agreement as an executive agreement.
In response to an anxious question at a press conference on Monday, U.S. Special Envoy on Climate Change Todd Stern explained that whether or not the Paris agreement would need to be submitted to the Senate for consideration "will depend entirely on how the agreement is written." In a somewhat circular manner, Stern noted, "We will submit any kind of agreement that requires that kind of submission." Stern did observe that neither the Copenhagen Accord under which the Obama administration set the goal of reducing U.S. greenhouse gas emissions 17 percent below their 2005 levels by 2020 nor the Cancun Agreements that set out procedures for making emissions reduction pledges have been submitted to Congress for consideration. Why not? Because adherence to both is entirely voluntary.
A 2010 Congressional Research Service (CRS) legal analysis of climate agreements put it bluntly, "The United States is not legally bound by the Copenhagen Accord." The CRS analysis added, "The Copenhagen Accord cannot be used as an independent basis for agency regulations imposing emissions restrictions on industry." The CRS analysis also observes that nothing prevents the president from attempting to fulfill the voluntary Copenhagen Accord pledges by seeking domestic climate change legislation or promulgating regulations pursuant to existing statutes such as the Clean Air Act and the Energy Independence and Security Act. In fact, this is what President Obama has done by increasing corporate average fuel economy standards and seeking to reduce electric power plant emissions of carbon dioxide by 30 percent.
Another journalist asked Stern if a Paris agreement with some kind of legally binding greenhouse gas reduction targets would have to be submitted to Congress. Stern diplomatically replied, "We are very mindful that agreements could be structured in such a way that some would need to go to the Congress and some would not." So what kind of climate agreement reached in Paris next year might need Congressional approval?
The 2010 CRS legal memorandum speaks to that question directly. It notes that a 1992 Senate Committee on Foreign Relations report dealing with the ratification of the UNFCCC flatly stated that a "decision by the Conference of the Parties to adopt targets and timetables would have to be submitted to the Senate for its advice and consent before the United States could deposit its instruments of ratification for such an agreement." The 1992 Senate report also explicitly added that any presidential attempt "to reinterpret the Convention to apply legally binding targets and timetables for reducing emissions of greenhouse gases to the United States" would also require the Senate's prior advice and consent.
The State Department's own Foreign Affairs Manual notes that presidents may conclude executive agreements in three cases, e.g., pursuant to a treaty already authorized by the Senate; on the basis of existing legislation; and pursuant to his authority as Chief Executive when such an agreement is not inconsistent with legislation enacted by the Congress. Consequently, President Obama might assert that he has the authority to bind the U.S. to take on international obligations under the Paris climate agreement because it is pursuant to the already authorized UNFCCC and is consistent with existing federal environmental legislation.
On the other, the Manual offers guidance for deciding when a treaty or when an executive agreement is appropriate. Relevant considerations include (1) the extent to which the agreement involves commitments or risks affecting the nation as a whole, (2) whether the agreement is intended to affect State laws, and (3) the preference of the Congress as to a particular type of agreement. Clearly any international agreement that purports to impose legal limits on the emissions of greenhouse gases would involve risks to the nation as a whole and affect state laws. And, as noted earlier, the Senate has plainly stated that setting any greenhouse gas reduction targets and timetables under the UNFCCC would require its advice and consent.
So if the Paris agreement contains, as the European Union apparently wants, some kind of legally binding greenhouse gas reduction targets or timetables, President Obama could have a tough time asserting that he can obligate the U.S. to it by means of an executive agreement. Of course, that doesn't mean that the president won't try to do it.