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May 18 --It is a question foremost in the minds of international climate negotiators and Obama administration negotiators alike: What exactly will the Republican-controlled Senate do to undercut end-of-year Paris climate talks?
With less than seven months until the nations of the world gather in hopes of reaching the first truly global climate accord, neither Republicans opposed to the deal nor supporters of President Barack Obama appear to know the answer to that question.
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Republican leaders are in agreement on one issue: The Senate will have a say in any deal that commits the U.S. to actions to cut greenhouse gas emissions. “[The deal] needs to be reviewed, scrutinized and looked at and I think Congress has a role to play in that,” Sen. John Thune (R-S.D.), a member of Republican leadership, told Bloomberg BNA.
“The congressional oversight role is an important one and I think it’s one we need to exercise,” Thune said. In a global climate accord involving nearly 200 nations, “you’re talking about major agreements that are going to have tremendous consequences in a lot of ways, but for sure economically” for the U.S., he said.
But how to proceed? Thune said it is unclear exactly what actions Republicans have in mind. He said “it’s possible” the Senate could take up a resolution akin to one passed nearly two decades ago during negotiations on the Kyoto Protocol, known as the Byrd-Hagel resolution, which warned the Clinton administration that the Senate would not ratify the protocol if it did not include commitments from China and other developing nations to cut their rising emissions.
“[The deal] needs to be reviewed, scrutinized and looked at and I think Congress has a role to play in that.”
Sen. John Thune (R-S.D.), Senate Republican leadership
International negotiators are expected to reach an agreement in Paris that will be less a binding treaty and more a hybrid agreement containing binding and non-binding elements. Each nation is to offer a pledge to address its emissions, backed by domestic policies or laws, but would be subject to binding requirements for measuring and verifying whether those actions actually are cutting greenhouse gases.
For now, Republican senators agreed, all options are on the table. “We think the proper role [of the Senate] is to protect the American economy, and jobs in the economy, from proposals the president comes out with that will hurts jobs, hurt the economy, hurt the American worker and put us at a competitive disadvantage worldwide,” Sen. John Barrasso (R-Wyo.) a Foreign Relations subcommittee chairman, told Bloomberg BNA.
“We’ll use any approach we can to make sure we can protect the economy and jobs against what the president is doing,” Barrasso said.
Asked for comment, the office of Senate Majority Leader Mitch McConnell (R-Ky.) pointed to the leader's earlier remarks that “our international partners should proceed with caution before entering into a binding, unattainable deal.”
Most Republicans conceded that there is no consensus on how to head off the president. But their caucus is nearly unanimous in arguing that U.S. participation in a global climate deal should be subject to advice and consent in the Senate.
“All treaties and agreements of that nature are obviously the purview of the United States Senate, according to the Constitution,” Sen. John McCain (R-Ariz.) said. “Now the president may try to get around that, as he has on the issue of the agreement with Iran, but I believe clearly [that the] constitutional role, particularly of the Senate, should be adhered to.”
Sen. Shelley Moore Capito (R-W.Va.) agreed Congress will have a role to play in the months ahead but also is unsure of how to proceed.
“I don’t think we should be creating burdens on our country that are incongruous with” what other countries might commit to, she said, adding that “Congress ought to look at this.”
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But asked if the approach should mirror the Senate debate over the Iran negotiations, Capito demurred.
“I don’t know if we’ll do something like that [Iran letter],” she said. “I’m sure that we’re going to want to be active on it. How active right now still remains to be seen.”
The West Virginia Republican said the Senate could “look at” addressing international negotiations through the appropriations process and vowed strong “oversight” from Republicans in the upper chamber.
The Obama administration argues that the president has the constitutional authority to negotiate such executive agreements without Senate ratification; the U.S. is already a party to a 1992 climate treaty--the Senate ratified the United Nations Framework Convention on Climate Change that year--which committed it and other nations to actions. But many in the Senate, mostly Republicans, note that the treaty was meant to recognize the need to address climate change and was silent on the specific steps nations would agree to take to curb greenhouse gases. A global accord committing the U.S. to specific emissions cuts would require ratification, they say.
Many Republicans simply dismiss any international agreement as dangerous and unwarranted.
“I do believe that this is a very dangerous action by the president, constitutionally and for the interests of the people of the United States,” Sen. Jeff Sessions (R-Ala.) told Bloomberg BNA. President Obama “seems to be outside where the American people are and is advocating an agenda that will be damaging to the American economy, and so I have thought in general that Congress needs to examine what the plans are in Paris and see how it can push back” against it, Sessions said.
“I think there’s going to be an enormous temptation on their part to scuttle the deal, but I think in the end we’ll be able to hold enough votes so it will not be possible.”
Sen. Ed Markey (D-Mass.)
Those who argue an international climate deal is vital to curbing emissions linked to rising sea level and increasing global temperatures, including environmental groups and think tanks that have been monitoring decades of UN negotiations that are now tantalizingly close to a deal, are worried.
“At this stage it’s very appropriate for the Senate to be closely monitoring the negotiations to understand the issues, the U.S. position and potential outcomes,” said Elliot Diringer, executive vice president of the Center for Climate and Energy Solutions (C2ES). But at some point Senate intrusion actually could be counterproductive for those seeking more commitments from rapidly developing nations, he said, if those countries become convinced that the U.S. pledges will be undercut by Congress.
“We have a good shot at a meaningful deal, getting all the major economies on board,” Diringer said. It would be very unfortunate if a politically driven move by Congress were to undermine the administration’s ability to deliver that.”
“U.S. acceptance of the new agreement may or may not require legislative approval, depending on its specific contents,” according to the C2ES report, Legal Options for U.S. Acceptance of a New Climate Change Agreement.
“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,” author Daniel Bodansky, a law professor at Arizona State University’s Sandra Day O’Connor College of Law, said in the report.
“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,” the report said.
Many Senate Democrats say any impact from Senate intervention is likely to be only temporary. They predict that Republicans don’t have the votes to pass legislation or even a resolution that would limit Obama’s authority to negotiate in Paris.
“I think there’s going to be an enormous temptation on their part to scuttle the deal,” Sen. Ed Markey (D-Mass.) told Bloomberg BNA “But I think in the end we’ll be able to hold enough votes so it will not be possible” for Republicans to undercut the president.
“I don’t know what they may be contemplating, other than they have vowed to do everything they can to block those agreements,” Markey said. “I [believe] that the administration has a wide latitude in terms of those kinds of executive agreements, historically, and I’ll be looking at any and all proposals. But I just think anything that’s intended in terms of scuttling it, I’m going to” oppose.
“People are going to try, when they don’t like something, to say that Congress shouldn’t let them do it. But that doesn’t mean that they should.”
Sen. Maria Cantwell (D-Wash.)
Sen. Maria Cantwell (D-Wash.) said the issue is not whether the Senate should have a role in such agreements. “Listen, our Congress, particularly the Senate, is always going to have the prerogative to take on an issue that they want to take up,” Cantwell told Bloomberg BNA. “Nothing’s changed about that.”
While she steered clear of outright supporting the climate deal until more details emerge--“I don’t have an answer to that,” Cantwell said--she warned against the Senate simply acting because it can.
“People are going to try, when they don’t like something, to say that Congress shouldn’t let them do it. But that doesn’t mean that they should,” Cantwell said.
The White House, for its part, directed Bloomberg BNA to April remarks from Press Secretary Josh Earnest in which he said: “I think it’s hard to take seriously from some members of Congress who deny the fact that climate change exists, that they should have some opportunity to render judgment about a climate change agreement.”
Options for scuttling the negotiations are many, but even nonbinding resolutions could undercut U.S. negotiators. Other countries could have less incentive to sign onto the deal, for example, if they have reason to believe either a future administration or Congress would fail to implement Obama's policies.
One option for the chamber is to take up a sense-of-the Senate resolution in the run-up to the Paris talks warning the Obama administration--and putting negotiators from other nations on notice--that the Senate must ratify the deal. That approach will likely fall short of passage: It would require at least six Democrats and no Republican defections to get to the 60 votes needed to avert a filibuster threat.
A less intrusive strategy might be a resolution pushing the administration to accept a deal only if it includes significant emissions cuts from China, India and other developing nations.
Other options available to Senate Republicans: The chamber could take up legislation or offer amendments to bills on the floor conceding the climate agreement is an executive deal that can be negotiated by the president but asserting Congress’s authority to review it. Or, taking a page from debate in early May over the Iran nuclear deal, senators could offer amendments seeking to label the deal a congressional-executive agreement--one negotiated by the president but requiring congressional review.
Sen. Ron Johnson (R-Wis.), who sits on the Foreign Relations Committee, said those are exactly the approaches he is considering after offering similar amendments to a bill (H.R. 1191) asserting congressional authority in the Iran negotiations May 7.
“I would hope that Congress would weigh in,” Johnson told Bloomberg BNA. He said there is no “set criteria that makes something a treaty versus a congressional executive agreement or just an executive agreement,” but any of those options would suggest Congress has some role in reviewing the deal.
“I’d say there is a growing convergence around an approach in which countries commit to make a verifiable contribution to the global effort, but their specific emissions targets are not internationally binding.”
Elliot Diringer, executive vice president, Center for Climate & Energy Solutions
But Johnson said his amendments suggest some approaches for the Senate in the run-up to the Paris Conference of the Parties climate negotiations, which begin Nov. 30. One would have deemed the Iran agreements that President Obama sought a treaty and thus requiring Senate ratification; it failed by a vote of 39-57. He also authored a proposal that conceded the point that the president has some executive authority to negotiate the Iran deal but would have deemed the deal a congressional-executive agreement.
Even a nonbinding resolution almost surely would undercut U.S. negotiators much the way a 1997 resolution (S. Res. 98) revealed deep Senate concern over whether Clinton administration negotiations under the Kyoto Protocol might commit the U.S., but not developing nations, to binding emissions cuts.
Authored by Sens. Robert Byrd (D-W.Va.) and Chuck Hagel (R-Neb.) and passed by a vote of 95-0, it warned the administration to stay clear of a deal that did not require actions by developing nations at the “negotiations in Kyoto in December 1997, or thereafter”--a phrase some suggest meant any future talks under the 1992 UN Framework Convention on Climate Change. Passage of the resolution was seen as a death knell for U.S. efforts to implement the protocol; President George W. Bush essentially withdrew the U.S. from the agreement in 2001.
Environmental organizations, think tanks and other groups that have been closely monitoring the global negotiations for more than a decade concede the Senate has a role to play in voicing support or concern for the direction of the climate negotiations. But they note that presidents have routinely negotiated international deals using their constitutional authority to do so, and over time, far more deals have been signed using executive authority than through treaty ratification.
They also note that any deal the U.S. signs in Paris is likely to include only nonbinding emissions reduction pledges, not binding targets. What would be binding are the accounting procedures for measuring and verifying whether emissions ultimately are reduced.
“I’d say there is a growing convergence around an approach in which countries commit to make a verifiable contribution to the global effort, but their specific emissions targets are not internationally binding,” Diringer said.
Central to the Senate debate is the degree to which the Obama administration is authorized to negotiate the Paris agreement under the 1992 UN Framework Convention on Climate Change treaty. The Senate ratified the agreement Oct. 7, 1992, and President George H.W. Bush signed it five days later.
The unanimous Senate ratification of the treaty more than two decades ago stands in stark contrast to today, when nearly all Republican senators oppose Obama’s climate agenda and many are skeptical that human activity even contributes to climate change.
One illustration of how far Republicans have moved away from supporting international climate action: McConnell, now one of the leading voices in the Senate in opposing Obama's climate agenda, spoke in support of ratification before the Senate vote 23 years ago.
“The Climate Convention is the first step in crucial long-term international efforts to address climate change.”
Sen. Mitch McConnell (R-Ky.), October 1992
In signing the instrument of ratification of the treaty in 1992, Bush noted, the U.S. was the first industrialized nation to ratify a measure he termed “comprehensive in scope and action-oriented,” and “the first step in crucial long-term international efforts to address climate change.”
The treaty took some steps--for example, requiring countries to inventory emissions sources--but the then-president said that industrialized countries “must go further, outlining in detail the programs and measures they will undertake to limit greenhouse emissions” and to adapt to climate impacts.
Obama will likely be taking a different route in the end-of-year negotiations in Paris, using his executive authority to signal U.S. agreement. But presidents have long used executive authority to reach international agreements that the Senate has not ratified. Treaties such as the Louisiana Purchase--the 1803 treaty ratified by the Senate that expanded the U.S. west of the Mississippi--are increasingly rare.
The Senate has ratified roughly 1,100 treaties since 1789, but presidents have signed off on more than 18,500 executive agreements during that period, which is a conservative estimate, according to a Congressional Research Service report issued earlier this year.
There have been essentially three types of executive agreements: congressional-executive agreements, where Congress has previously or retroactively authorized an international agreement entered into by the executive branch; executive branch agreements made pursuant to an earlier treaty, in which a ratified treaty authorized the agreement; and “sole” executive agreements, in which an agreement is made without additional congressional authorization, according to CRS.
The Obama administration has stayed clear of commenting on what the agreement will be, arguing that the legal nature of the Paris accord won’t be known until the negotiations in December are concluded.
But Sen. James Inhofe (R-Okla.) took a harsh tone. “The administration will go in and say things that aren’t true and they’ll lie to the [190-plus] countries and say what we’re going to do over here,” Inhofe said. The fact that it is only a pledge--“that’s not the way it’s going to be presented in Paris. They’re going to say, 'It’s all going to be done.’ The general public outside of the United States thinks if the president says it, it’s going to happen,” Inhofe said. “And that’s not true.”
In some ways, the 1992 debate is very similar to today’s, with a Senate wary of committing the U.S. to emissions cuts if developing nations--particularly China, which was then coming into its own as a significant manufacturing competitor to the U.S.--do not. The debate in the Senate Foreign Relations Committee prior to ratification in 1992 centered on repeated assurances by the Bush administration and Democrats that the any U.S. emissions reductions would have to be ratified by the Senate.
McConnell, in discussing the UNFCCC--an agreement he ultimately would vote to ratify on the floor--said: “I felt compelled to discuss the possibility of a unilateral interpretation with the chairman of the Foreign Relations Committee, who has given me his public assurances that if this treaty is amended or interpreted by the executive branch to commit the United States to stabilize greenhouse gas emissions, that it would be subject to ratification by the Senate. The Foreign Relations Committee has included language to this effect in the committee report accompanying this treaty to make the record on this point absolutely clear.”
“The executive branch is precluded from interpreting this convention as a binding commitment to targets and timetables unless ratified by the Senate,” McConnell said, more than two decades ago. “Interpreting the aim of this convention in binding terms would amount to a material change in the treaty requiring the Senate's advice and consent.
“With the chairman's assurances,” he said, “I am pleased to support this fine agreement. I congratulate President Bush on his courageous leadership on the issue of global climate change.”
To contact the editor responsible for this story: Larry Pearl at firstname.lastname@example.org
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