The Paris Climate Conference: Solutions for a Legacy Problem

Brandon Wells, KLJ Staff Editor[1]

At the end of November, President Obama will join representatives of over 190 countries in attending the Paris Climate Conference.[2] The purpose of this meeting is to discuss international environmental policies aimed at reducing global greenhouse gas emissions,[3] which are a major contributing factor to global warming.[4] The United States currently produces the second most greenhouse gas emissions of any country,[5] raising the importance of whatever policy commitments President Obama makes at the conference. This is especially true given that the Kyoto Protocol, a similar international environmental agreement created in the 1990s, utterly failed to cut global carbon emissions.[6]

One of the reasons that the Kyoto Protocol failed was that the United States failed to ratify it,[7] robbing the agreement of the participation of one of the world’s leading greenhouse gas emitters. In order for an international treaty to become law in the United States, the Constitution requires ratification by two-thirds of the Senate.[8] Before the Kyoto Protocol was even finished, however, the Senate unanimously passed a resolution announcing that the United States should not be a signatory to any agreement aimed at reducing greenhouse gas emissions that would either grant special treatment to developing nations or “result in serious harm to the economy of the United States.”[9] This resolution included a specific condemnation of the negotiations in Kyoto.[10] As a result, the Kyoto Protocol was never even submitted to the Senate for ratification.[11]

Given the history of the Kyoto Protocol and the recent congressional pushback against President Obama’s environmental policies,[12] he may have to operate without the express support of Congress if he intends to sign any agreements at the Paris Climate Conference. This leaves the President with a few options; obviously, he can participate in the international discussion without the intention of signing any agreements or making any substantive policy changes. However, this seems unlikely given that this last stretch of President Obama’s final term has been marked by an uptick in environmental policy activity.[13]

A lack of explicit congressional approval does not by itself prevent the President from unilaterally binding the United States to an international agreement; although an international treaty requires a two-thirds Senate vote,[14] the Supreme Court has held that the Constitution vests in the President the authority to independently create executive agreements in certain circumstances, especially between the United States and foreign nations.[15] The scope of this power, however, is far from certain;[16] the general rule is that the President’s authority to create such agreements is broadest when he acts with the express consent of Congress, and diminishes as it crosses the spectrum from congressional consent into the infamous “zone of twilight” of congressional disapproval.[17]

Express or implied congressional acquiescence is thus the key to the President’s power to make executive agreements with foreign nations. The President has many avenues to obtain this authority, such as signing a treaty and submitting it to Congress for ratification or submitting an international agreement to both houses of Congress for a simple majority vote.[18] The President may also make certain limited types of binding agreements pursuant to statutory authority granted by Congress;[19] for example, he could use the authority granted by the Clean Air Act to regulate aviation emissions standards,[20] or use authority granted by the Energy Policy and Conservation Act to recommend higher minimum standards for fuel economy.[21]

Based on the above, whatever policies the President makes should be carefully crafted to avoid drawing the ire of Congress. As with the Kyoto Protocol, the Legislature has the ability to condemn a climate change agreement before it is even fully formed. While Obama attempts to solidify his legacy, he must carefully craft any further environmental agreements to ensure that they will remain in operation beyond the span of his presidency.

[1] J.D. expected May 2017.
[2] Steven E. Koonin, The Tough Realities of the Paris Climate Talks, N.Y. Times (Nov. 4, 2015), http://www.nytimes.com/2015/11/04/opinion/the-tough-realities-of-the-paris-climate-talks.html.
[3] Id.
[4] IPCC, Climate Change 2014 Synthesis Report: Summary for Policy Makers 2-3 (2014), http://www.ipcc.ch/pdf/assessment-report/ar5/syr/AR5_SYR_FINAL_SPM.pdf.
[5] Tom Boden & Bob Andres, World’s Countries Ranked by 2011 Total Fossil-fuel CO2 Emissions, U.S. Dep’t of Energy Carbon Dioxide Info. Analysis Ctr., http://cdiac.ornl.gov/trends/emis/top2011.tot.
[6] Max Paris, Kyoto Climate Change Treaty Sputters to a Sorry End, CBC News,  http://www.cbc.ca/news/politics/kyoto-climate-change-treaty-sputters-to-a-sorry-end-1.1184986.
[7] Id.
[8] U.S. Const. art. II, § 2, cl. 2.
[9] Byrd-Hagel Resolution, S.R. 98, 105th Cong. (1997).
[10] Id.
[11] Paris, supra note 5.
[12] Matthew Daly, GOP-led Congress Moves to Block Obama’s Clean Power Plan, Associated Press (Oct. 16, 2015, 4:56 PM), available at http://www.businessinsider.com/ap-gop-led-congress-moves-to-block-obamas-clean-power-plan-2015-10; Andrew Taylor, Republicans in Congress Try to Block Obama Administration’s Environmental Plans, PBS Newshour (June 18, 2015, 1:59 PM),  http://www.pbs.org/newshour/rundown/republicans-congress-try-block-obama-administrations-environmental-plans/.
[13] Chris Mooney, How Obama’s Keystone XL Rejection Adds Momentum to the Paris Climate Talks, The Washington Post (Nov. 6, 2015), https://www.washingtonpost.com/news/energy-environment/wp/2015/11/06/how-obamas-keystone-xl-rejection-gives-him-momentum-for-the-paris-climate-talks/; Daily, supra note 11; Taylor, supra note 11.
[14] U.S. Const. art. II, § 2, cl. 2.
[15] Restatement (Third) of Foreign Relations Law § 303(g) (1987); Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 415 (2003).
[16] Louis Henkin, Foreign Affairs and the Constitution, 66 Foreign Affairs 284, 296-97 (1987).
[17] Id. at 285 (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J. concurring)); Dames & Moore v. Regan, 453 U.S. 654, 668-69 (1981).
[18] Hannah Chang, International Executive Agreements on Climate Change, 35 Colum. J. Envtl. L. 337, 347 (2010).
[19] Id. at 357.
[20] Clean Air Act, 42 U.S.C. §§7401-7671(q) (2006);
[21] Energy Policy and Conservation Act, 49 U.S.C. §32902 (2007).