Obama’s Violating the Constitution by Not Submitting Climate Treaty to Senate

DailySignal/Senator Mike Lee and Congressman Mike Kelly:

Today at United Nations Headquarters in New York City, Secretary of State John Kerry and representatives of over 130 nations will sign the Framework Convention on Climate Change agreement that was negotiated in Paris last December.

According to President Obama, this “historic agreement” will “hold every country accountable” if they fail to meet its carbon emission targets.

The White House has also acknowledged that the agreement contains “legally binding” provisions designed to create a “long-term framework” that will force the United States and signatory countries to reduce carbon emissions for decades to come.

Despite these facts, President Obama has already announced he will not submit the Paris Climate Agreement to the Senate for advice and consent. Instead, the White House claims the signature environmental achievement of the president’s tenure is just an “international agreement” not meriting Senate attention.

If the stakes weren’t so high, this claim would be laughable on its face.

Not only was this agreement’s predecessor, the United Nations Framework Convention on Climate Change, submitted to the Senate and approved as a treaty, but when the Senate ratified that treaty, the Foreign Relations Committee specifically reported that any future emissions targets agreed to through the Convention “would have to be submitted to the Senate for its advice and consent.”

President Obama has chosen to ignore this directive.

He has also chosen to ignore the State Department’s eight-factor test that is used to determine “whether any international agreement should be brought into force as a treaty or as an international agreement other than a treaty.”

Those eight factors are:

1) The extent to which the agreement involves commitments or risks affecting the nation as a whole (the agreement’s carbon reductions will inflict costs on every American who consumes energy)

2) Whether the agreement is intended to affect state laws (the agreement will force states to meet emission targets)

3) Whether the agreement can be given effect without the enactment of subsequent legislation by the Congress (Congress will have to appropriate money for the agreement’s Green Climate Fund)

4) Past U.S. practice as to similar agreements (the agreement’s predecessor was submitted as a treaty)

5) The preference of the Congress as to a particular type of agreement (Congress wants to vote on this agreement)

6) The degree of formality desired for an agreement (the agreement is a highly detailed 31-page document)

7) The proposed duration of the agreement, the need for prompt conclusion of an agreement, and the desirability of concluding a routine or short-term agreement (the agreement sets emissions targets decades in advance)

8) The general international practice as to similar agreements (there are many, but the 1985 Vienna Convention for the Protection of the Ozone Layer is just one example)

The only reason President Obama is not sending the Paris Climate Agreement to the Senate as a treaty is that he knows the Senate would handily reject it.

This is an unacceptable breach of Article II Section 2 of the Constitution, and Congress must do something about it.

That is why we have introduced a concurrent resolution in the House and Senate expressing the sense of Congress that the Paris Climate Agreement must be submitted to the Senate as a treaty for its advice and consent.

If President Obama fails to do so, then Congress must prevent its implementation by forbidding any payments to the agreement’s “Green Climate Fund,” an international slush fund included in the Paris agreement to induce developing nations to sign the agreement.

If Congress fails to specifically prohibit taxpayer money from being spent implementing the Paris Climate Agreement, then they will be complicit in President Obama’s subversion of the Constitution.

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More reading on the facts of the Accord, or whatever it is called that will not receive a Senate vote:

FAS: On April 22, 2016, as many as 155 countries intend to sign the new international Paris Agreement to address greenhouse-gas-induced climate change. No international agreement to date has attracted as many signatures on the opening day of the year-long signature period. Eight nations—all perceiving themselves as particularly vulnerable to the impacts of climate change—plan to deposit their instruments of ratification as well.

Delegations of 195 nations adopted the Paris Agreement on December 12, 2015. It creates a structure for nations to pledge every five years to abate their greenhouse gas (GHG) emissions, to adapt to climate change, and to cooperate to these ends, including financial and other support. A single framework to promote transparency and track progress of Parties’ efforts applies, for the first time, to all Parties—whether rich or poor. The Parties also adopted a Decision to

give effect to the Paris Agreement. Both the Decision and the Agreement (hereinafter capitalized) are intended to be legally binding on Parties to the United Nations Framework Convention on Climate Change (UNFCCC) and the new Agreement, respectively, though not all provisions within them are mandatory. Both are subsidiary to the UNFCCC, which the United States ratified with the advice and consent of the Senate (Treaty Document 102-38, October 7, 1992).

The UNFCCC entered into force in 1994.

Whether the new Paris Agreement or Decision would require Senate advice and consent depends on the content of the agreements. If either were to contain new legal obligations on the United States, it would favor requiring Senate consent to ratification. However, the United States and other Parties to the UNFCCC accepted many legally binding obligations when they ratified the Convention, including control of greenhouse gas (GHG) emissions, preparation to adapt to climate change, international cooperation and support, and regular reporting of emissions and actions with international review. Some have argued that the Paris Agreement does not require more of the United States than it is already obligated to do under the UNFCCC, while others have argued that it does.

Purpose and Post-2050 Balance of Emissions and Removals

The agreement states that it aims to hold the increase in the global average temperature to well below 2 °C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change.

This purpose is stated as enhancing the implementation of the UNFCCC, including its objective to stabilize GHG concentrations in the atmosphere at a level to avoid dangerous anthropogenic interference in the climate system. In order to achieve this “long-term temperature goal,” Parties aim to make their GHG emissions peak as soon as possible and then to reduce them rapidly “so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century.” In other words, the Agreement envisions achieving net zero anthropogenic emissions. While this is arguably synonymous with the UNFCCC’s objective of stabilizing GHG atmospheric concentrations, the Agreement puts a timeframe on the objective for the first time. However, as a collective objective, the Agreement provides no means to hold an individual Party accountable if the objective were not met.

Mitigation and Adaptation

The Agreement and Decision establish a single framework under which all Parties would:

communicate every five years and undertake “ambitious” Nationally Determined Contributions (NDCs) to mitigating GHG emissions, participate in a single “transparency framework” that includes communicating their GHG inventories and implementation of their obligations, including financial support provided or received, not less than biennially (with exceptions to a few, least developed states), and be subject to international review of their implementation.

All Parties will eventually be subject to common procedures and guidelines. However, while developed country Parties (not defined) must provide NDCs stated as economy-wide, absolute GHG reduction targets, developing country Parties are exhorted to enhance their NDCs and move toward similar targets over time, in light of their national circumstances.

Further, flexibility in the transparency framework is allowed to developing countries, depending on their capacities, regarding the scope, frequency, and detail of their reporting. The administrative Secretariat of the Convention will record the NDCs and other key reports in a public registry.

The Agreement also requires “as appropriate” that Parties prepare and communicate their plans to adapt to climate change. Adaptation communications, too, will be recorded in a public registry.

A committee will, in a facilitative and non-punitive manner, address compliance issues under the Paris Agreement. The Paris Agreement contains provisions for voluntary withdrawal of Parties.

The Agreement permits Parties voluntarily to participate in cooperative approaches (implicitly, emissions markets) that “involve the use of internationally transferred mitigation outcomes.”

Finance

The Agreement reiterates the obligation in the UNFCCC to provide financial support to developing country Parties to implement their mitigation efforts, calling for it to be continuous and enhanced. It uses exhortatory language to restate the collective pledge in the 2009 Copenhagen Accord, of $100 billion annually by 2020, and calls for a “progression beyond previous efforts.” For the first time under the UNFCCC, the Agreement encourages all Parties to provide financial support. In addition, in the Decision, the Parties agreed to set, prior to their 2025 meeting, a new, collective, quantified goal for mobilizing financial resources of not less than $100 billion annually to assist developing country Parties. The Decision strongly urges developed country Parties to scale up their current financial support—in particular to significantly increase their support for adaptation. The Agreement recognizes that “enhanced support” will allow for “higher ambition” in the actions of developing country Parties.

Five-Year Assessments

In 2023 and every five years thereafter, the Parties are to perform a “global stocktake” to review implementation of the Paris Agreement and progress toward the purpose of the Agreement and the long-term net zero anthropogenic emissions goal.