Can Obama Sign A Climate Treaty Without Congress?

Why some environmentalists believe the president has the power to sidestep the Senate and commit the US to a global pact.
In 1997, in the Japanese city of Kyoto, the Clinton administration agreed to a groundbreaking treaty to combat global warming. And that's when the trouble started. The Senate had unanimously refused to approve the Kyoto Protocol, and in the end the Clinton administration didn't even submit it for a vote in the upper chamber. This made the US both the world's biggest polluter and, ultimately, the only industrialized nation to reject the accord. Now, as world leaders attempt to negotiate a new climate deal at Copenhagen, environmentalists want to avoid a repeat of the Kyoto debacle. That's why some green groups are urging Obama to do an end-run around the Senate and assert that his presidential powers empower him to commit the US to a climate treaty on his own.
Under Article II of the constitution, a president can sign an international treaty, but it must by ratified by two-thirds of the Senate before it becomes law. But there are also other types of international accords, like trade deals, that can be entered via a congressional-executive agreement, which requires only the approval of a simple majority in both houses of Congress. There’s no ironclad rule that determines which international pacts fall into which category. But neither route is easy. The last treaty to win ratification was the Strategic Offensive Reductions Treaty in 2002, which reduced the nuclear arsenals of Russia and US. Trade agreements are no picnic, either—the most recent pact approved was with Peru in 2007, while Bush administration deals with Colombia, South Korea and Panama are still languishing on Capitol Hill. When you consider that a domestic cap-and-trade bill has yet to win backing from the 60 senators required to even bring the measure up for a vote, the chances of securing 67 supporters for a major international treaty seem very slim indeed.
Against that backdrop, some environmental groups and legal experts are calling on Obama to take unilateral action. At a briefing in Copenhagen last week, Greenpeace and the Center for Biological Diversity (CBD), an Arizona-based conservation group, argued that the president could become a party to a binding climate agreement simply by signing an executive agreement, bypassing Congress altogether. There is "very solid legal footing for negotiating an executive agreement here in Copenhagen," argued Kassie Siegel, senior counsel of CBD, which has issued a new report outlining what it sees as Obama’s legal options for entering a climate accord. Friends of the Earth has also endorsed this concept. "If he wants to lead the world on climate change, he has to step up to the plate and commit the US to the treaty process," said FOE president Erich Pica.
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The president has full authority to sign a climate treaty on his own, CBD argues, because Congress has already granted him the domestic power to regulate emissions. In making this claim, CBD is referring to a number of federal laws, most notably the Clean Air Act. In early December the Environmental Protection Agency (EPA) issued a final declaration that greenhouse gases are a threat to human health and can be regulated under the 1990 amendments to the legislation. The EPA's ruling, as well as new rules that it is expected to release, enable Obama to sign an international accord with or without congressional approval, CBD argues.
CBD also cites the Global Climate Protection Act of 1987—a largely forgotten law that empowers the president to "identify technologies and activities to limit mankind’s adverse effect on the global climate" by "slowing the rate of increase of concentrations of greenhouse gases in the atmosphere in the near term" and "developing and proposing to Congress a coordinated national policy on global climate change." This 1987 legislation also states that the "Secretary of State shall be responsible to coordinate those aspects of United States policy requiring action through the channels of multilateral diplomacy, including the United Nations Environment Program and other international organizations."
Some legal experts have also made the case that the president does not need the approval of 67 senators before joining a global effort to stop planet-warming pollution. Michael B. Gerrard, a professor at the Center for Climate Change Law at Columbia University’s law school, recently wrote that the administration could enter a binding international climate pact via an executive agreement combined with the existing authority granted to him under domestic law. Michael Widmore, the executive director of the Institute for Policy Integrity at New York University School of Law has echoed this view, noting that a section of the Clean Air act authorizes the president "to enter international agreements… and to develop standards and regulations which protect the stratosphere." He concluded: "This could provide a foundation for an executive agreement—and Obama wouldn't need to round up 60 votes from the Senate."
But even if this course of action is legally feasible, is it actually a good idea? It's true that the Supreme Court has determined that the federal government can regulate greenhouse gas emissions under the Clean Air Act. But the administration, Congress, and most of the environmental community has stated a preference for a new federal law that specifically deals with carbon dioxide pollution. That’s because only so much can be done to reduce emissions using EPA rules alone.
EPA regulation does not provide the timing or certainty on emissions cuts that other nations are seeking from the US at Copenhagen. For starters, current EPA regulations lack any firm targets about the size of carbon dioxide cuts or a deadline for making reductions. And because such rules are usually implemented in phases, action would probably be slow. EPA regulations would also likely be the target of a deluge of lawsuits, potentially causing long delays and making it harder for other nations to count on US commitments. Nor could EPA rules be used to create mechanisms for financing adaptation and mitigation, seen as essential to any final climate accord. "The sort of international agreement that the United States could be part of while using EPA regulation to deliver on its commitments—that is, an agreement that wouldn’t require Senate or Congressional approval—would look radically different from what most of the negotiators gathered in Denmark have in mind," wrote Michael Levi of the Council on Foreign Relations.
Siegel of the CBD acknowledged that a legislative solution would be "the best way to go." But she observed that the "Senate has been standing in the way for 12 years now," and Obama should not feel compelled to wait. She added: "What we are saying is he is not legally constrained here."
But other environmental groups warn that trying to act on climate without Congress could be politically disastrous. "He can do a lot of things that a lot of groups want to see him do—if he's willing to see it kill the Senate [cap-and-trade] bill," argued Alden Meyer, director of strategy and policy for the Union of Concerned Scientists. "That's the political reality."
A solid bloc of Senate Democrats is still unwilling to support a domestic cap-and-trade measure, and at least one has already objected to the mere idea of Obama making non-binding commitments at Copenhagen to targets that weren't previously approved by the upper chamber. Then there are the Republicans seeking to torpedo climate action outright. On Thursday Sen. James Inhofe briefly touched down in Copenhagen to inform the international community that the US Congress won't support climate legislation. "You don't want to feed into that," said Meyer. A glimpse of the likely GOP line of attack could be viewed in a rather audacious January op-ed by John Yoo and John Bolton—hardly shrinking violets on the subject of expansive presidential powers. The pair warned that Obama may seek to sidestep the Senate and sign a climate treaty alone, and that such a course of action would be an unacceptable threat to the Senate’s constitutional authority.
And the risks aren’t purely political. Getting into a turf war with the Senate could result in very real setbacks for Obama's environmental agenda. Senate Republicans have already tried once this year to cut off funding to the EPA to prevent it from regulating carbon, and could easily do so again. In addition, if a climate accord hasn't been ratified by the Senate but is instead implemented via regulations, it could be more easily reversed by Congress or a future president. "The international community has to have the assurance that any commitment by the United States is negotiated on behalf of the country as a whole, and will be lived up to," said Matthias Duwe, director of the Climate Action Network Europe. "It would be detrimental if there was a rollback afterwards."
While CBD acknowledges that it's rare for the US to enter an international pact through a sole executive agreements, it argues that there "is no real dispute" that this type of agreement is binding under international law. But the report provides only a handful of precedents. Some are old (such as 1937 and 1941 agreements with the Soviet Union), and others deal with an extremely unusual or urgent situation (like the Iran hostage crisis). There's also the question of the legal precedent that would be established by such a move. One of the biggest criticisms of the Bush administration from the left was its aggressive drive to expand executive power, particularly in the national security realm, without appropriate consultation with Congress. If Obama acted alone on climate, it could enable future presidents to follow his example in other areas of foreign policy.
If the US and the rest of the world has learned anything from the Kyoto process, it's that it's perilous for an administration to promise policies that will trigger a revolt on Capitol Hill. "It's not wise for the executive branch to make agreements that go way beyond what they could expect Congress to go along with," said David Doniger, who served as the director of climate change policy at the Environmental Protection Agency during the Clinton administration and is now policy director of the climate center at the Natural Resources Defense Council.
Still, certain US climate activists insist that the time has come for Obama to deliver big in Copenhagen. Said Steve Herz, climate finance adviser at Greenpeace, "This is precisely the kind of difficult decision we elected him to make."
Comments
Actually a seemingly
Actually a seemingly reasonable and comprehensive post from you Kate.
Can you imagine all the talking heads exploding if Obama enters into Copenhagen unilaterally by executive decision?
It'll be time to buy stock in gun companies.
Senate Treaty ratification
The Senate is such a bunch of political cowards they continually give away their power to the President.
Powers such as oversight, where the White house says we will share information with you if you agree to keep it confidential. Oversight???
Powers such as declaring war, where the Senate says we leave it up to you...
The Senate needs to learn that, "If you put up with it you deserve it". Especially in light of the fact that what the Senate puts up with effects us all, and we didn't elect them to "put up with it".
Lets try principles before politics for a while. Its been so long since that was the guiding principle I wonder if it still works...
The president has full
The president has full authority to sign a climate treaty on his own, CBD argues, because Congress has already granted him the domestic power to regulate emissions. In making this claim, CBD is referring to a number of federal laws, most notably the Clean Air Act. In early December the Environmental Protection Agency (EPA) issued a final declaration that greenhouse gases are a threat to human health and can be regulated under the 1990 amendments to the legislation. The EPA's ruling, as well as new rules that it is expected to release, enable Obama to sign an international accord with or without congressional approval, CBD argues.
Neither the Oval Office or ...
In this case, neither the Oval Office or Congress have the constitutional authority to negotiate climate issues in a treaty, IMO. More specifically, given the federal Constitution is silent about the climate, the 10th Amendment automatically reserves government power to regulate climate issues to the states, not the Oval Office and Congress.
The bottom line is that the federal government cannot use its constitutional power to negotiate treaties as a back door to forcing citizens to comply with foreign laws when the feds don't have the constitutional authority to regulate a given issue in the states anyway. And if you don't believe me then maybe you'll believe the following respected constitutional expert.
"Surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way." --Thomas Jefferson: Parliamentary Manual, 1800. http://www.constitution.org/tj/tj-mpp.htm
The problem is that we've got a bunch of "leaders" in DC who are blatantly ignoring their oaths to defend the Constitution, particularly where their complete lack of respect for state sovereignty is concerned. Voters ultimately have a big mess to cleane up in DC in 2010.
Progressive insanity
Laws and rules don't mean much to the progressives as long as they get their way. Can you imagine the howls from Kate Shepherd and her ilk if say George W. Bush tired something like she's recommending in her article? The howls from the progressive movement would drowned everything else out. Why? They would recognize it for what it is an unconstitutional act and a massive power grab. Of course those progressives like Kate Shepherd like power being amassed and used by progressives. That's why they support people like Chevez, Castro, Ortega etc and why they are urging President Obama to act more like Chevez, Castro and others like them.
Wow.
I really believe that Obama should be able to do this. All that the congress has done to us is screw us over time and time again. Problems still arise but no one takes action. Maybe Obama will have the decency to take action. Smoothie Blender Vegetable Steamer
The arrogance of
The arrogance of eco-progressives is beyond measuring. Actually, make that all progressives. I understand that in addition to wanting to ban guns, the eco-gang wants to make sure that no private citizen can get their hands on those little CO2 cylinders (like for BB guns and whipped cream dispensers) since CO2 is a deadly poison, a green house gas, and an agent of social and environmental injustice!
"Every bottle of whipped cream destroys a village in Eritrea" says a noted eco-justice activist.
Climate vs. industry: Industry 1, climate 0
Industry, left to its' own devices, is very productive, while government tends to produce one thing, well two, counting the dead trees, but what, exactly, is produced?
The political climate, and the extent and degree to which 'government' runs around researching things, and then making laws regarding this or that in the absence of a public(keyword) vote, is such that the vast body of people in this world are treated not as participants in deciding their own fate, but roughly as subjects of the crown, to do as they're bid, and not otherwise. Why? Because if you read back, most of these governments were, at one time, monarchies, dictatorships, plutocracies, all that kind of good stuff. It's all a Big Show, to kind of distract people from the fact that more and more layers of bureaucracy will then be imposed on them, now by faceless entities from overseas.
Is climate legislation one more step towards world government? Some say yes, some say it's time for groups of nations to start doing a better job of governing their OWN countries, picking the beam out of their OWN eye, as it were, and letting other nations generally fare as they might. But, I think we've crossed the Rubicon, the point of no return, in all of this, because frankly, issues and countries are now interconnected and interrelated to the point that international partnerships and entities almost have to form, in order to get a handle on the problem. THAT having been said, is there really an environmental problem, or just people with solutions for problems that don't honestly exist, bureaucrats and scient(olog)ists that would otherwise end up unemployed, drinking Ripple on a park bench, or having to make movies with specially-trained sea life as the key character of the feature?
Well, 'experts' tell us that, among other things, there's now a Giant Sea Of Floating Plastic Stuff, whirling and swirling around out there, in the Pacific. There's probably a similar garbage gyre slopping around in the Atlantic ( but maybe it's better to focus on something we can blame on China, and tell them how to run THEIR country, tee, hee).
No, this issue is about more than garbage barges doing what they do best, this issue is about more than just those evil people that heartlessly chuck half a bottle of laundry detergent in the dumpster, just because it has dried crusties on the cap and nobody wants to take the time to clean them off, or people that throw a car battery in the disposal, or the 20,000 other castoff things that eventually either make it out to the ocean, or into the landfill etc. This is about people, and what a throwaway society we are(always have been, but now with better, more durable garbage). This is about 6.8 billion people, and the amount of garbage we produce, and the amount of energy we consume, on an hourly basis. Now that everything's gone commercial, gone BIG, we blow through more BTU's, gigawatts, and metric tons of consumer goods per hour than at any previous time in history, partly because there's more people than there's ever been, at any time in history, and everybody wants that Lexus(or equivalent). Or, DO they? Is this pollution/energy consumption paradigm mainly a problem for so-called 'developed' countries, where big business is king, and people do just like they're told on TV, because that's the way it's always been? Hard saying, not knowing, but the commercial/industrial production phenomenon and the pollution it produces is now a global phenomenon, and like 6.8 billion little 2-legged termites, our activity now also results in mining, drilling, and other harvesting functions that'd put your average ant colony to SHAME. Actually, since one of the things we do is poison the ground to exterminate things like ants, it also puts them to death. Along with entire species of fish, birds, heck, even other people. We are, so to speak, become victims of our own success, in this sense.
Now, despite whatever gets signed, does not get signed, or by whom it get signed, will there be a dramatic overnight cumulative change in overall human behavior? Probably not, because at least some portion of the climate debate is, in fact, hot air, and a money game. Take the business of carbon credits. Now they're talking about how companies can move money around, carbon offsets, all this other business. Well, if the problem is heat emissions, then stay with the idea of coming up with low-heat/no-heat methods of production of material goods. Ah, but now you're asking manufacturers to re-tool assembly lines, do things differently, to change their practices and methods. For some companies, this would mean going out of...business. Now you get into some of the motive and motivation driving some of this legislation, because if you're over here, playing climate politics, and over there, in a country where they don't care about such things, they're also making money from the sale of finished goods, and YOUR nation's economy is faltering because of all the hoops you make companies jump through in order to turn out finished products, say, in the United States, and then those companies turn around, and jump on the boat overseas to get away from all the state and federal red tape, what are you going to do, but try to expand the government red tape to where it will then have global reach? A colleague of mine once remarked, 'its all about control', well, maybe some government types have a control fetish, and a presumed authority from which to operate, and can't really restrain themselves from the urge to get into other people's/countries' business, especially because 'government' tends to get a cut of the action, regardless of what country you're talking about. And, maybe the majority of the people in this world are about sick of having either the United States, or Europe, tell them how to run their affairs? Maybe it's time for some DE-globalization? Instead of NIMBY, then GOMBY(Get OUT of my back yard)? Using our own corporate structures, manufacturing practices, and so forth, China is now moving into 1st place, globally. 1.4 billion hands make light work, and eventually, short work of the United States and its' economy. We ARE friends with China, right? Good thing, too, because increasingly, they underwrite our very government, and our currency, which might someday even have chinese characters on it due to economic karma resulting from previously existing trading arrangement(s).
No, I don't think a policy paper is going to cut the mustard, or the CO2 levels, here. I think that pollution, global warming, if human-caused, which is still under debate, is an issue that's going to be solved the same way it came about, namely through technological advancement, and the basic 'deal' of people deciding that having rivers full of dead fish or empty of water really isn't the right way to go, and that using things like sunshine to its' best ability is a better overall concept than glow-in-the-dark(and chatter-in-the-dark) tap water.
6.8 billion people gotta eat, sleep, and poop somewhere, now, how good are we at arranging it so that it's not the same place where we eat? Time will tell...
I say, 'show me'. I want to see a polar bear that just couldn't swim that last 1/2 mile to the floating piece of debris which is the only object that breaks the otherwise smooth surface of the now completely liquified artic. I want to see the people dousing themselves with Coppertone tanning oil on the coast of Alaska. I want to see the waterskiers and the hotel developers creating new white sandy beaches and umbrella drinks. I want to see their other resort hotels in lower latitudes sinking beneath the waves. Yes, show me. People can wave sheafs of paper around all day long, sounding very important on TV on a great number of subjects, but time after time, the proof, the tangible proof, is absent. We're supposed to take it on faith that supplemental layers of bureaucracy will make for a better planet. Well, that's worked well in some countries, hasn't it? Well, maybe not. No, unfortunately, brand 'government' is laying its' overall credibility on the line on this one, and as long as you have 2-legged land whales like Al Bore trying to lecture the rest of humanity about consumption, it's just not going to hold water. No, people want to see measured, verified ocean level increase, as measured ON a stick, and then triple-quadruple-verified by people that have their own little labs and institutes, and stuff like that, and then go look at the stick for themselves, and inspect the top of the stick for hammer marks, and the bottom for any kind of subsidence, or evidence of being mounted on some kind of hydraulic or telescoping mechanism. Yes, show me. Show me something that can be proven NOT to have been cooked up in some college class by a bunch of oxygen-thieving pot smokers whose main extracurricular activity isn't whining about people that run successful companies that make the money which is then taxed to pay for their educational activities. Yes, I wanna see proof, and then I want to see evidence that ALL these people are smart enough, and think they're important enough, to tell our oceans what to do, because if you pan back, and look at it, like say, in Hubble-vision, or something, the Earth is a BIG place, and you can't even SEE people from 100 miles up, let alone 10, so, maybe this is a case of people kind of seeing themselves as far more important and significant than they really are, and they'll all be surprised next time an asteroid of sufficient size gets sucked down into our atmosphere, and causes a Big Tsunami, and shuts down all that evil commercial fabrication stuff that seems to be the heart of the problem, here.
Show me, in other words, that this isn't just an excuse to suck more revenue out of companies that would otherwise be able to keep their doors open, and people hired on at decent wages, were it not for the simple fact of having entirely too many well-meaning albeit misinformed government busybodies involving themselves in, and then interfering with, the operations that produce the golden eggs for the customers around the world that then pay good money for them, or would, if they had money left over after the government got done sucking it all up to pay for some kind of goofball climate study, keeping eggheads and other hangers-on employed at public expense for all perpetuity...in one sense, government's kind of a parasite, and it doesn't really matter what justification is used for stuffing their blood snout into an economic artery...if they can successfully prove that the environment and all attendant paperwork isn't just a bunch of B.S., then fine, but if they can't, then they need to shred it, and make like, paper mache out of it, maybe it'd float better, that way, when the ocean finally does rise to wipe out all human life, or whatever? Ok, I'll get off the soapbox now...
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