Republicans Gearing Up to Undercut Obama on Paris Accord

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By Dean Scott

Oct. 13 — Senate Republicans are about to open up attacks on multiple fronts to undercut President Barack Obama's efforts to essentially bypass the Senate in negotiating the first truly global agreement to address climate change.

The Republican strategy includes what one Senate committee aide termed a “preemptive” resolution akin to a no-confidence vote in Obama's authority to sign on to the climate accord, which is expected to be completed in Paris in December.

Republicans would likely push for the vote just before—or possibly during—the Nov. 30-Dec. 11 United Nations summit, in hopes of sowing doubt among negotiators who have been assured by the administration that the president can agree to the deal relying solely on his executive authority under the Constitution to negotiate international agreements.

If agreed to, the Paris deal among nearly 200 countries would be the first to commit industrialized and developing nations alike to curb greenhouse gas emissions linked to rising global temperatures.

“Republicans do not support the route that the president is taking,” a Republican aide with the Senate Environment and Public Works Committee told Bloomberg BNA. “So there's some idea of doing a resolution [to say] there are concerns about what the president is doing and suggesting” any deal should be taken up the Senate given its advice and consent authority under the Constitution, the aide said.

“Regardless of the final legal form [of the climate deal], just on its face—by the very nature of what is being proposed—it will require some sort of Senate role,” the committee aide said, whether that means formal ratification or less formal “consultations” with the Senate.

“The president can do the dance of making part of it politically binding and part of it legally binding,” the aide said. “But there's no way around” the need for some consultation with the Senate.

Embassies Warned Obama Authority Limited 

Republican environment committee aides also sat down weeks ago with embassy representatives from two countries—Australia and Switzerland—in part to undercut the notion that Obama can sign the U.S. on to a deal in Paris without Senate approval. Committee aides said they also have spoken in recent weeks with the French embassy but that those conversations were limited to the logistics of the Paris talks.

Senate Environment and Public Works Committee Chairman James Inhofe (R-Okla.) also plans to hold a hearing in the weeks ahead to scrutinize the U.S. strategy going into Paris as well as the president's broader climate policies. Inhofe is also considering attending the Paris climate summit to argue that Obama cannot commit the U.S. to actions on his own, aides said.

Inhofe's committee has asked the State Department, which heads the U.S. negotiations, as well as the Environmental Protection Agency, to testify at the yet-to-be scheduled hearing, committee aides said.

Christiana Figueres, who oversees the international negotiations as head of the UN climate secretariat, said negotiators appear to be unswayed by the argument that the U.S. can't follow through with any agreement it makes in Paris. “My sense is that other governments are taking the word of the United States [as expressed by the Obama administration] very seriously,” she told Bloomberg BNA in an interview.

The U.S. administration “has proven that they are very serious about this [given] all of the different measures they have taken over the last year,” Figueres said, including EPA actions to limit carbon pollution from power plants, the centerpiece of what the U.S. is putting on the table toward the Paris deal. “There is still full confidence and an expectation that the United States will deliver on this.”

The U.S. has vowed it will cut its overall greenhouse gas emissions 26 percent to 28 percent by 2025, using 2005 emissions levels as a baseline; the EPA says its power plant limits alone would cut emissions from the power sector 32 percent by 2030, also from 2005 levels.

‘Meaningful Consultations' Sought 

Senate Foreign Relations Committee Chairman Bob Corker (R-Tenn.) also is expected to turn more of his focus to the issue in the weeks ahead; that committee has primary Senate jurisdiction over international negotiations.

In a Sept. 22 letter to Secretary of State John Kerry, Corker sharply questions whether the administration intends any “meaningful consultations” with the Senate over the deal and whether it considers the agreement one “that legally binds the U.S. under international law or a non-binding political document”.

Senate Democrats say such efforts are an obvious ploy to derail global efforts to address climate change and will have no lasting impact on the Paris talks. They argue Republicans are well short of the 60 votes they would need on the prospective resolution to avert a Democratic-led filibuster threat.

Undercutting Negotiators Confidence?

But Republicans counter that even a 51-vote majority would highlight the deep political divisions over the president's climate policies in the U.S. It also, they hope, would sap other negotiator's confidence in the ability of the U.S. to follow through on its acceptance of the Paris deal.

The U.S. negotiating team, led by Special Envoy for Climate Change Todd Stern, is pushing for a sort of hybrid agreement out of the Paris summit that includes national emissions reductions pledged by individual nations and backed by domestic policies or laws. But the U.S. would subject those national pledges to binding measurement and verification requirements to ensure the actions are taken.

That approach reflects a political reality in the U.S., which is that the administration would have no chance of getting a binding international deal through the Republican-controlled Senate. Republicans say that is little more than a ploy to make an end-run around Senate ratification.

Not ‘Monolithically’ Binding Deal

Figueres told Bloomberg BNA the exact legal nature of the climate deal won't be decided until the end of the Nov. 30-Dec. 11 UN summit, but negotiators are likely to end up with a mix of legally binding and nonbinding elements.

“Overall the agreement is going to be legally binding. But it's not going to be monolithically, legally binding like the Kyoto Protocol,” which was adopted in 1997 but only set legally binding targets for industrialized nations, Figueres said.

“There will be different characteristics of the legally binding nature of each of the components,” she said, with some considered internationally legally binding, others not.

But even those that are not deemed internationally binding might still be considered “nationally legally binding,” she said.

That distinction could apply, for example, to pledges put forth thus far by nearly 150 nations to address their greenhouse gas emissions. Those would be nationally binding in the sense that they are supposed to be backed by domestic laws or regulatory policies, Figueres said.

‘Agreed Outcome’ Likely Legal Form 

Developed and developing agencies launched the international climate negotiations at a 2011 UN climate summit in Durban, South Africa, and said the final agreement would include actions from all countries.

But negotiators there essentially punted on the precise legal nature of what they would agree to, stipulating only that the deal be either a “protocol, another legal instrument, or an agreed outcome with legal force” under the UN Framework Convention on Climate Change.

Alden Meyer, who tracks the UN negotiations for the Union of Concerned Scientists, said there is still plenty of uncertainty over what parts of the deal will be binding and what parts won't.

“The most likely outcome, most observers would say, is that we're not on track for [a] new treaty, or a new protocol,” Meyer said, in part because for the U.S., either of those options would likely mean Obama negotiators would have to put such a treaty or protocol before the Senate for ratification.

“Developing countries also are not willing to do a binding [agreement] absent commitments for financing and technology” assistance from richer developed nations like the U.S., Meyer, the UCS’s director of strategy and policy, said.

Thus, the Paris deal is likely to be “more akin to an ‘outcome of legal force’—that would be the most applicable to where we appear headed,” Meyer said.

On Solid Legal Footing?

That said, many parties including the European Union as well as many environmental groups “are still pushing for a legally binding” deal, Meyer said, even if that approach is a nonstarter to the U.S.

But would Obama be on solid legal footing in agreeing to a Paris climate deal without congressional approval? That depends on what the U.S. is agreeing to, according to Daniel Bodansky, a law professor at Arizona State University's Sandra Day O'Connor College of Law.

“The president would be on relatively firm legal ground accepting a new climate agreement with legal force, without submitting it to the Senate or Congress for approval, to the extent it is procedurally oriented, could be implemented on the basis of existing law, and is aimed at implementing or elaborating the UNFCCC,” Bodansky wrote in his report, published in May by the Center for Climate and Energy Solutions (C2ES).

“On the other hand, if the new agreement establishes legally binding emissions limits or new legally binding financial commitments, this would weigh in favor of seeking Senate or congressional approval” of the deal, according to the report, “Legal Options for U.S. Acceptance of a New Climate Change Agreement.”

Leaders Invited to Open Talks 

Negotiators appear cautiously optimistic they can reach a deal by the end of the December summit in France, which will serve as the 21st Conference of the Parties to the 1992 UN Framework Convention on Climate Change, which called for stabilizing atmospheric greenhouse gas concentrations “at a level that would prevent dangerous anthropogenic interference with the climate system.” The nearly 200 parties to that treaty have spent the last two decades debating what actions developed and developing nations should take to make that commitment a reality.

In hopes of building momentum toward a deal, France, which in addition to hosting the COP-21 summit will hold the COP presidency and thus preside over the negotiations, has summoned world leaders to arrive on Nov. 30 to kick off the talks.

Figueres said the invitations to heads of state were sent out by French officials Oct. 12.

The formal two-week negotiations will proceed once leaders have made their remarks on that Monday, Nov. 30, she said.

Having leaders arrive at the beginning of the talks is meant to assure negotiators they have the highest political backing to get a climate deal agreed to at the end of COP-21. At 2009 talks in Copenhagen, Obama and other leaders from China, Brazil and other nations arrived at the end to essentially salvage talks that had nearly collapsed. But the agreement fell well short of a breakthrough and led to grumbling by many nations who felt they were essentially cut out of the last-minute deal.

That said, world leaders who arrive in Paris at the beginning of the Paris talks would be more than welcome to return near the end of the summit, she said.

National leaders “provide the highest level of political guidance that we have,” the UN official said. “Now, whether they would want to go to Paris on Nov. 30 and then come back at the end remains for them to decide,” she said. “But the door is always open.”

To contact the reporter on this story: Dean Scott in Berlin at dscott@bna.com

To contact the editor responsible for this story: Greg Henderson at ghenderson@bna.com