The Head-On Politics of Going Around Congress on Climate Change

White House faces collision with GOP over global pact that wouldn’t go through Senate

BANNING, CA - DECEMBER 8: Emissions-producing diesel trucks and cars pass non-polluting windmills along the 10 freeway on December 8, 2009 near Banning, California. Sustained global warming shows no sign of letting up according to new analysis by the World Meteorological Organization made public at the climate talks in Copenhagen. Although global temperature fluctuates from year to year, overall the decade of the 2000s is likely the warmest decade in the past 150 years covered by the report. This decade is warmer than the 1990s which were warmer than the 1980s, and so on. The conclusion meshes with independent analysis by the National Climatic Data Center and NASA. (Photo by David McNew/Getty Images)
National Journal
Michael Catalini Ben Geman
Aug. 28, 2014, 1 a.m.

On the sur­face, word that the Obama ad­min­is­tra­tion is ne­go­ti­at­ing a glob­al cli­mate change pact that prob­ably doesn’t need Sen­ate rat­i­fic­a­tion is bad news for Re­pub­lic­ans. It could amount to a policy set­back for the GOP and of­fers the pres­id­ent a po­ten­tial leg­acy item.

But be­neath the sur­face, an emis­sions deal that avoids Cap­it­ol Hill would give Re­pub­lic­ans an­oth­er polit­ic­al ar­row to aim at Demo­crats, bol­ster­ing the GOP’s ar­gu­ment that the pres­id­ent cir­cum­vents Con­gress when it serves his policies.

“Any agree­ment that by­passes Con­gress would not only vi­ol­ate the Con­sti­tu­tion but would be an ab­us­ive over­reach by a pres­id­ent who con­tin­ues to think he is above the rule of law,” said Sen­ate Minor­ity Whip John Cornyn of Texas.

The top­ic drew re­newed at­ten­tion Wed­nes­day after a front-page New York Times story laid out in de­tail what has long been known in cli­mate-policy circles: The United Na­tions ac­cord that ne­go­ti­at­ors hope to fi­nal­ize next year likely won’t be a form­al new treaty, and there­fore won’t need sign-off from the Sen­ate, which would have been an im­possible bar­ri­er.

Privately, Re­pub­lic­ans are say­ing it’s too early to sketch a plan to block the move. But foes may still have re­course.

One pos­sib­il­ity is us­ing the ap­pro­pri­ations pro­cess to block funds for im­ple­ment­ing the deal, sug­ges­ted Steve Bell, a former Sen­ate Re­pub­lic­an aide to the Budget Com­mit­tee. “Oth­er than just com­plain­ing about it, the only real thing they could do would be through ap­pro­pri­ations,” he said.

But even if Re­pub­lic­ans win con­trol of the Sen­ate, the chances of get­ting such a meas­ure signed in­to law are re­mote.

Still, Re­pub­lic­ans, par­tic­u­larly House Re­pub­lic­ans, might bring up a mes­saging bill ex­pli­citly pro­hib­it­ing the pres­id­ent’s pact, Bell ad­ded. They’d prob­ably find sup­port among pro-coal Demo­crats such as Rep. Nick Ra­hall of West Vir­gin­ia, who knocked the “end-run around Con­gress.”

Wed­nes­day’s at­tacks from Sen­ate GOP lead­ers and can­did­ates tracks with what is be­com­ing a well-worn polit­ic­al dia­logue between the GOP and the White House, one that stretches back at least as far as the pres­id­ent’s pledge to use his pen and phone to go around GOP op­pos­i­tion in Con­gress.

The an­ti­pathy runs deep, with Re­pub­lic­ans char­ging that the pres­id­ent re­fuses to work with them, and the White House lob­bing the same charge in re­turn. The res­ult has been a le­gis­lat­ive im­passe, with the White House cast­ing Re­pub­lic­ans as ob­struc­tion­ists and the GOP billing the pres­id­ent as law­less.

Minor­ity Lead­er Mitch Mc­Con­nell, locked in a close reelec­tion con­test in Ken­tucky where he has linked his op­pon­ent to the pres­id­ent, panned the no­tion of avoid­ing Sen­ate rat­i­fic­a­tion, where a two-thirds vote is needed.

“Un­for­tu­nately, this would be just an­oth­er of many ex­amples of the Obama ad­min­is­tra­tion’s tend­ency to abide by laws that it likes and to dis­reg­ard laws it doesn’t like—and to ig­nore the elec­ted rep­res­ent­at­ives of the people when they don’t agree,” he said in a state­ment.

The is­sue is play­ing out on the cam­paign trail in oth­er con­tests, too. With Re­pub­lic­ans in strik­ing dis­tance of tak­ing the ma­jor­ity in Novem­ber, GOP can­did­ates in battle­ground states are seiz­ing on the re­port.

Said Rep. Cory Gard­ner of Col­or­ado, locked in a close race against Demo­crat­ic Sen. Mark Ud­all: “Col­oradans don’t elect sen­at­ors to watch them toss their power to the pres­id­ent, wheth­er Re­pub­lic­an or Demo­crat.”

The Si­erra Club, one of the groups that pushes for tough curbs on heat-trap­ping emis­sions, on Wed­nes­day sought to steer the battle away from the par­tic­u­lars of how a pact may be struc­tured.

“For the mil­lions of fam­il­ies in Amer­ica and the bil­lions more around the world who are fa­cing the dev­ast­at­ing ef­fects of the cli­mate crisis today, the pre­cise leg­al form of a glob­al cli­mate deal is not the key is­sue,” said Si­erra Club Pres­id­ent Mi­chael Brune.

The Obama ad­min­is­tra­tion, for its part, said it’s too early to say wheth­er the new United Na­tions cli­mate pact that in­ter­na­tion­al ne­go­ti­at­ors hope to fi­nal­ize in Par­is late next year will re­quire Sen­ate sign-off.

But White House spokes­man Josh Earn­est hardly ruled it out. In­deed he made it clear that the State De­part­ment is ap­proach­ing the on­go­ing in­ter­na­tion­al ne­go­ti­ations mind­ful of do­mest­ic polit­ic­al bar­ri­ers.

“We would not want to enter a situ­ation where we did try to broker an agree­ment that did re­quire some sort of Sen­ate rat­i­fic­a­tion and then have that fall vic­tim once again, as so many oth­er pri­or­it­ies have, to dys­func­tion in Con­gress,” Earn­est told re­port­ers at a brief­ing.

The talks are aimed at reach­ing a deal that, un­like the Kyoto Pro­tocol, in­cludes com­mit­ments from de­vel­op­ing coun­tries such as China and In­dia, which are the world’s first- and third-largest green­house-gas pol­luters, re­spect­ively (the U.S. is No. 2).

The emer­ging plan is rooted in de­cisions that emerged from frac­tious 2009 cli­mate talks in Copen­ha­gen and sub­sequent 2011 talks in Durb­an, South Africa. They pro­duced what is known as the Durb­an Plat­form, which is a road map for an ac­cord that takes ef­fect in 2020 and has, at the very least, “leg­al force.” But that’s a flex­ible term.

The agree­ment is ex­pec­ted to weave do­mest­ic pol­lu­tion pledges from all coun­tries in­to a sys­tem with some form of man­dat­ory re­view and re­port­ing. Here’s how a re­cent pa­per by a pair of Mas­sachu­setts In­sti­tute of Tech­no­logy ex­perts pre­dicts it will un­fold:

“Ne­go­ti­ations will fo­cus on loosely har­mon­ized do­mest­ic ac­tions in a sys­tem of pledged con­tri­bu­tions, with some sys­tem of ex-post re­view. Since a leg­ally bind­ing agree­ment on emis­sions tar­gets is un­likely to oc­cur, the Durb­an Plat­form spe­cific­a­tion of an agreed out­come with leg­al force could only re­quire man­dat­ory par­ti­cip­a­tion in a pro­cess to re­view pro­gress in achiev­ing pledged con­tri­bu­tions.”

Peter Og­den, dir­ect­or of in­ter­na­tion­al en­ergy and cli­mate policy with the lib­er­al Cen­ter for Amer­ic­an Pro­gress, said ne­go­ti­at­ors’ de­cisions about the ar­chi­tec­ture of the ac­cord are about more than pro­spects for Sen­ate ac­tion. A form­al treaty would also be a hard sell with China and In­dia, he said.

“One of the break­throughs of the Copen­ha­gen Ac­cord was that for the first time—and in sharp con­trast to the Kyoto Pro­tocol—all ma­jor pol­luters from both de­veloped and de­vel­op­ing agrees agreed to make green­house-gas pol­lu­tion re­duc­tion com­mit­ments, and they were all equally bound to make good on their com­mit­ments,” said Og­den, a former Obama ad­min­is­tra­tion cli­mate policy aide who served in the White House and the State De­part­ment. “Giv­en that China and In­dia are not talk­ing about tak­ing on leg­ally bind­ing emis­sions re­duc­tions, you’d also be giv­ing up those Copen­ha­gen ac­com­plish­ments by go­ing down the treaty route.”

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