The Times has a story suggesting that the President will enact sweeping changes to American climate change policy through a United Nations framework.
The Obama administration is working to forge a sweeping international climate change agreement to compel nations to cut their planet-warming fossil fuel emissions, but without ratification from Congress.
But it won’t be a treaty, so it won’t require 2/3 vote in the Senate. So what exactly is it? I’ve read the article, and I have no idea. Here’s how the Times introduces it:
To sidestep that requirement, President Obama’s climate negotiators are devising what they call a “politically binding” deal that would “name and shame” countries into cutting their emissions. The deal is likely to face strong objections from Republicans on Capitol Hill and from poor countries around the world, but negotiators say it may be the only realistic path.
Perhaps my knowledge of international law is a bit rusty, but what the hell does this mean? Are “politically binding” and “name and shame” terms of art in modern international law?
The article elaborates, and says that this new agreement would expand upon a 1992 treaty:
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.
How would Congress be “legally required to enact” any policies? Or is this saying the President would enact these policies himself? It seems the latter.
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. That regulation, which would not be not final until next year, already faces legal challenges, including a lawsuit filed on behalf of a dozen states.
And what happens if a court finds the President lacks such powers? Or, per Missouri v. Holland, does the treaty enhance the President’s powers?
What is clear, is that, once again, the supporters of this law–apparently including the President–are citing the gridlocked Senate’s unwillingness to support this agenda as a justification for this creativity.
“If you want a deal that includes all the major emitters, including the U.S., you cannot realistically pursue a legally binding treaty at this time,” said Paul Bledsoe, a top climate change official in the Clinton administration who works closely with the Obama White House on international climate change policy.
Lawmakers in both parties on Capitol Hill say there is no chance that the currently gridlocked Senate will ratify a climate change treaty in the near future, especially in a political environment where many Republican lawmakers remain skeptical of the established science of human-caused global warming. …
“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.
This is asinine, because unlike the 60-vote limit imposed by the filibuster, the 2/3 requirement comes straight from the Constitution. This is not gridlock! Seeking a super-majority to ratify a treaty is a limit imposed by our Framers to ensure that the President did not get us into foolish treaties that lack bipartisan support. Of course, such trifles are of no moment for the President, who needs to correct this gridlock.
Update: Jack Goldsmith weighs in on this non-story:
I think the Coral Davenport’s New York Times story about President Obama’s international climate accord ambitions overstates the domestic significance of what the President is up to—probably to the delight of the White House. A clue to the problem is found in the Times headline (paper copy, not digital edition), which says: “Nations Would Commit to Curb Pollution, in Nonbinding Deal.” A nonbinding deal can do many things, but it is not much of a commitment. Davenport then opens her story with this sentence: “The Obama administration is working to forge a sweeping international climate change agreement to compel nations to cut their planet-warming fossil fuel emissions, but without ratification from Congress” (my emphasis). But Davenport goes on to say that nations will not in fact be compelled—at least not legally—to cut fossil fuel emissions. “President Obama’s climate negotiators are devising what they call a ‘politically binding’ deal that would ‘name and shame’ countries into cutting their emissions.” “Politically binding” is another way of saying “not legally binding.” i.e., it is a handshake. Handshakes can matter in international politics, and “naming and shaming” based on political agreements can sometimes work (the Helsinki accords are a famous example). But we don’t typically think of this form of international political pressure as “compulsion.” …
I seriously doubt that the President can lawfully (under the U.S. Constitution) commit the United States to international legal obligations of this sort and degree, beyond what is in the 1992 treaty. But much more importantly, even if what the President signs is somehow “legally binding” under international and even domestic law, that obligation wouldn’t force Congress to “enact domestic climate change policies” or to “channel money to poor countries to help them adapt to climate change.” Nor, I think, would the President’s name on such an accord assist in shaming Congress into action. I doubt that future Congresses will be much swayed by “name and shame” pressure based on a legally controversial accord signed by a lame-duck President on a topic with strong domestic political salience. Certainly the past does not suggest a happy future for shaming Congress in this way. (I am definitely not saying that no future Congress will ever support global emissions reduction. Domestic politics can change, and can be influenced by international events. I just think, to repeat, that a legally and politically controversial agreement entered in to by a lame duck president will not be the basis for the domestic change. It is conceivable, of course, that the Obama initiative will change the global politics of emissions reduction in a way that sparks domestic change; but again, that strategy has not worked in the past and is very speculative.)