How Binding Can An International Climate Agreement Get?

With Republicans opposed to a deal, legality looms over the Paris talks.

American street artist Shepard Fairey's latest piece, "Earth Crisis," a giant sphere, hangs between the first and second floors of the Eiffel Tower in Paris. The art piece will be displayed until Nov. 26, as Paris will be hosting the climate-change conference from Nov. 30 to Dec. 11.
AP Photo/Binta Epelly
Jason Plautz
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Jason Plautz
Nov. 29, 2015, 8 p.m.

Mitch Mc­Con­nell and the rest of the Sen­ate Re­pub­lic­ans are des­per­ate for a chance to weigh in on—and re­ject—an agree­ment to fight cli­mate change craf­ted at a United Na­tions sum­mit that starts Monday.

But as White House of­fi­cials have prepped for the talks, they’ve largely brushed off those de­mands. And if U.S. ne­go­ti­at­ors get their way, they’ll be able to sidestep the Sen­ate’s de­mands, thanks to a vote in that very cham­ber two dec­ades earli­er.

Coun­tries are gath­er­ing in Par­is start­ing Monday for a two-week sum­mit to try to reach a glob­al deal to com­bat cli­mate change. Already, 170 coun­tries rep­res­ent­ing more than 90 per­cent of the world’s emis­sions have sub­mit­ted pledges to slash car­bon pol­lu­tion; the two-week sum­mit will seek to stitch those to­geth­er un­der a struc­ture that keeps coun­tries on track to lim­it glob­al warm­ing. It’s a huge op­por­tun­ity, not just for Pres­id­ent Obama to seal up his cli­mate leg­acy, but for the world to take ser­i­ous, mean­ing­ful ac­tion.

Op­pon­ents say the agree­ment will lock in an eco­nomy-killing re­gime that moves the coun­try away from fossil fuels and could give oth­er coun­tries a leg up. And while con­gres­sion­al Re­pub­lic­ans are us­ing every av­en­ue to at­tack the in­di­vidu­al com­pon­ents of the U.S. pledge, they’d also like the chance to re­gister their dis­ap­prov­al on the Sen­ate floor—or at least throw enough doubt in­to the mix to im­per­il the talks.

Sen. Mike Lee and Rep. Mike Kelly in­tro­duced res­ol­u­tions de­mand­ing any Par­is agree­ment be sub­mit­ted to the Sen­ate. And Re­pub­lic­ans are vow­ing to with­hold money for the Green Cli­mate Fund—a key part of the deal that would send money to de­vel­op­ing na­tions—un­less they get their say. A gov­ern­ment fund­ing bill will have to come up by Dec. 11, just at the end of the Par­is talks, a con­flu­ence of tim­ing that will al­low Re­pub­lic­ans to send a mes­sage.

“The in­ev­it­able out­come is a plan with un­proven be­ne­fits and un­reach­able goals, but very real costs,” wrote Sen. John Bar­rasso in a Wall Street Journ­al ed­it­or­i­al last week. “It will be up to Con­gress to check the pres­id­ent’s am­bi­tion of com­mit­ting the U.S. to an in­ter­na­tion­al green scheme that will pro­duce little or no re­turn.”

A leg­ally-bind­ing treaty would need the ap­prov­al of two-thirds of the Sen­ate, which would be vir­tu­ally im­possible un­der GOP con­trol (mod­er­ate Demo­crats, not­ably Sen. Joe Manchin, have also been against the cli­mate plan). And that means that people on both sides will be pars­ing the words of the agree­ment to see just how leg­ally bind­ing it is—and wheth­er that means the Sen­ate gets its day with it.

Ne­go­ti­at­ors see a way around Sen­ate ap­prov­al—and its roots lie in a floor vote in 1992. That’s when the Sen­ate rat­i­fied, by a voice vote, the United Na­tions Frame­work Con­ven­tion on Cli­mate Change, a re­l­at­ively trim doc­u­ment that re­quired that its parties set na­tion­al strategies to re­duce green­house-gas emis­sions and co­oper­ate in fu­ture talks to pre­pare for the im­pacts of cli­mate change.

The George H.W. Bush ad­min­is­tra­tion said at the time that any “pro­tocol or amend­ment” that set bind­ing green­house-gas-re­duc­tion tar­gets would have to go through the Sen­ate.

But now the White House is pur­su­ing a hy­brid agree­ment of sorts, one in which coun­tries’ in­di­vidu­al cli­mate pledges are vol­un­tary, but oth­er pro­vi­sions—like mon­it­or­ing of ac­tion on na­tion­al pledges or veri­fic­a­tion—would be in­ter­na­tion­ally bind­ing. The lat­ter as­pect would be covered un­der the leg­al au­thor­ity gran­ted by the UN­FC­CC and sidestep­ping the need for any new rat­i­fic­a­tion by the Sen­ate.

“We sup­port a strong and am­bi­tious agree­ment that holds coun­tries ac­count­able for the emis­sion tar­get that they take on,” said Paul Bod­nar, seni­or dir­ect­or for en­ergy and cli­mate change at the Na­tion­al Se­cur­ity Coun­cil, on a press call last week. “And the sys­tem that we’ve ad­voc­ated for, where some pro­vi­sions are leg­ally bind­ing but tar­gets them­selves are not, is the one that we be­lieve is de­signed to max­im­ize am­bi­tious ac­tion from the broad­est range of coun­tries.”

Nobody wants a purely vol­un­tary treaty that would al­low coun­tries to sit out their cli­mate pledges, but some coun­tries are also wary of see­ing a leg­al agree­ment that in­fringes on their sov­er­eignty. European na­tions had been push­ing for a more leg­ally-bind­ing doc­u­ment, al­though the French for­eign min­is­ter ac­qui­esced this week­end and said that the res­ult would not have to be en­tirely bind­ing, cit­ing the dif­fi­culties in get­ting it past the U.S. Con­gress. Still, ex­pect plenty of pars­ing over words like “must” versus “shall,” or the leg­al mean­ing of “treaty.”

The U.S. has sub­mit­ted a pledge to cut emis­sions by 26 to 28 per­cent of 2005 levels by 2025, us­ing a vari­ety of reg­u­la­tions, head­lined by rules slash­ing car­bon-di­ox­ide emis­sions from power plants.

That ap­proach would be dif­fer­ent than the 1997 Kyoto Pro­tocol, which im­posed leg­ally-bind­ing emis­sions cuts. The Sen­ate did not rat­i­fy that top-down ap­proach, and the U.S. nev­er entered the agree­ment, res­ult­ing in the new strategy that places the onus on in­di­vidu­al coun­tries to set their own tar­gets.

But op­pon­ents see it as an end-run around Con­gress. Lee said at a Her­it­age Found­a­tion event that the ap­proach smacked of “con­tempt” for the le­gis­lature and that Pres­id­ent Obama was re­ly­ing on “com­pul­sion, not per­sua­sion” to push the cli­mate agenda.

The White House is pla­cing a high pri­or­ity on the talks to help ce­ment Obama’s leg­acy on cli­mate change. Obama him­self will be in Par­is at the be­gin­ning of the sum­mit, when he’ll hold bi­lat­er­al talks with lead­ers from China and In­dia and speak at the open­ing ce­re­mon­ies with oth­er heads of state. Sev­er­al oth­er Cab­in­et mem­bers, in­clud­ing Sec­ret­ary of State John Kerry, will ap­pear throughout the con­fer­ence to bol­ster the U.S. po­s­i­tion.

Be­sides the leg­al nature of the agree­ment, ne­go­ti­at­ors will have to set up a sys­tem of re­port­ing and trans­par­ency to en­sure coun­tries are keep­ing up on their cuts, plus a sched­ule for fu­ture talks. There’s also go­ing to be a de­bate over cli­mate fin­an­cing to help de­vel­op­ing coun­tries.

The pledges alone won’t be enough to stop the world’s tem­per­at­ures from rising past the 2-de­grees-Celsi­us threshold that sci­ent­ists say may be a break­ing point, but ne­go­ti­at­ors say it can put the world on the right path—if the deal goes through.

“I think it’s im­port­ant that we get an agree­ment that the U.S. can join,” said El­li­ot Di­ringer, ex­ec­ut­ive vice pres­id­ent of the Cen­ter for Cli­mate and En­ergy Solu­tions. “If Sen­ate rat­i­fic­a­tion is a hurdle that can’t be cleared, it makes sense to ne­go­ti­ate the strongest pos­sible agree­ment that can be ac­cep­ted by the pres­id­ent on his own au­thor­it­ies.”

Re­pub­lic­an le­gis­lat­ors are also do­ing all they can to in­ject un­cer­tainty in­to the talks. The House next week will vote on Con­gres­sion­al Re­view Act res­ol­u­tions that would over­turn the White House’s power-plant-emis­sion rules, a bid to con­vince the world that Con­gress is not on board with the cli­mate agenda. The White House has prom­ised to veto the meas­ures, which already passed the Sen­ate.

It’s also pos­sible that res­ol­u­tions re­lated to Sen­ate ap­prov­al will see votes, al­though none are sched­uled. Re­pub­lic­an le­gis­lat­ors may even make their own trips to Par­is to stir up doubt in the talks.

Jake Schmidt, who works on in­ter­na­tion­al is­sues for the Nat­ur­al Re­sources De­fense Coun­cil, said that while the leg­al nu­ances of the doc­u­ment are im­port­ant, what ul­ti­mately mat­ters is get­ting every coun­try’s tar­gets in place for the fu­ture.

“At the end of the day, the words on the pa­per, wheth­er it says ‘shall’ … or something less leg­ally bind­ing than that … even­tu­ally come down to wheth­er coun­tries are mo­bil­iz­ing these changes on the ground,” Schmidt said. “That be­comes the corner­stone of the agree­ment.”

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