Is the Paris Agreement on Climate Change a Legitimate Exercise of the Executive Agreement Power?

David A. Wirth
Monday, August 29, 2016, 12:37 PM

The Paris Agreement on climate change, concluded last December and signed on Earth Day, April 22 this year, has become the latest episode in the long-running tug of war between President Obama and the present Congress over executive power. On the one hand, the Agreement has been hailed as a breakthrough global effort that successfully catalyzed the re-engagement of the United States with the multilateral climate regime.

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The Paris Agreement on climate change, concluded last December and signed on Earth Day, April 22 this year, has become the latest episode in the long-running tug of war between President Obama and the present Congress over executive power. On the one hand, the Agreement has been hailed as a breakthrough global effort that successfully catalyzed the re-engagement of the United States with the multilateral climate regime. On the other, it has triggered cries of protest in the Congress, and especially the Senate, where there have been claims that the President has bypassed the Constitutionally-mandated advice and consent process for a treaty. Along the way, there has been much confusion and misinformation. And President Obama, if anything, may have undershot in the Paris Agreement by failing fully to exercise his Executive authority.

In negotiating the Paris Agreement, the Executive Branch took great pains to remain within the confines of its authority as provided by (1) the President’s plenary powers; (2) federal statutes, particularly the Clean Air Act; and (3) existing treaties, most notably the 1992 Framework Convention on Climate Change , to which the Senate gave its advice and consent in 1992, under the George H.W. Bush Administration, which subsequently ratified the Convention for the United States. Even the most cursory review of the text of the Paris Agreement discloses a careful, purposeful alternation between the mandatory “shall”—indicating a binding obligation governed by international law—and the hortatory “should”—non-binding statements of strictly political intent without legal force. Indeed, the U.S. delegation held up the closing minutes of the conference that adopted the Paris Agreement over the should/shall distinction in an important provision of the Agreement addressing the need for developed country parties to undertake increasingly ambitious emissions reductions goals over time.

A close read of the Paris Agreement demonstrates that the U.S. delegation was entirely successful in navigating the line delineating the President’s legitimate exercise of his existing authority. If anything, the American negotiators were excessively conservative, in insisting on hortatory language when legally binding obligations were arguably entirely appropriate.

The President’s authority to enter into internationally legally binding agreements without Congressional participation or Senate advice and consent dates to the earliest years of the Republic. More than 90% of binding international agreements governed by international law are concluded by the United States without Senate advice and consent, known as “executive agreements.” As the President must act consistently with the Constitution and laws of the United States, every executive agreement must find legal support in the form of one or more of the following: (1) Congressional legislation; (2) an article II, section 2 treaty; or (3) the President’s own Constitutional powers. A process for determining the legal basis for an anticipated international agreement, known as “Circular 175,” has been in place since 1955 and applied by every Republican and Democratic President since.

Many of the binding obligations in the Paris Agreement are procedural in nature, involving reporting of emissions, progress in implementation, accounting for emissions, and the like. Exchanging information with other states is a Constitutional power of the President as Chief Executive and the U.S.’s top diplomat, the “sole organ” of the Nation in dealing with foreign governments. Even in the absence of express statutory or treaty authority, the President may engage in information exchange and cooperation with foreign government in the environmental field, as demonstrated by a 1980 executive agreement with Canada on acid rain.

Moreover, the 1992 Framework Convention, an article II, section 2 treaty expressly referenced in the Paris Agreement, specifically articulates an extensive range of procedural obligations, including emissions reporting, exchange of information, technology transfer, and cooperation in implementation. The Framework Convention also lays a legal foundation for substantive matters addressed in a binding mode in the Paris Agreement, most notably financial support for developing countries’ programs of mitigation (emissions reductions) and adaptation. Domestic statutory authority, such as the Clean Air, further buttresses the U.S.’s capacity to implement these commitments. Consequently, the individual obligations in the Paris Agreement find legal support in one, two, or all three of the requisite domestic sources.

If anything, U.S. negotiators overcompensated on the side of caution in the negotiation of the Paris Agreement, even to the title of the instrument. The Convention specifically addresses the relationship between that instrument and ancillary protocols. But as long ago as 2009 governments had widely understood that the new agreement could not be called a “protocol” without complicating U.S. participation after the highly charged domestic debate over the earlier Kyoto Protocol. More to the point, the many undertakings employing the hortatory “should” can be examined one by one to determine whether they might have been supported by U.S. domestic law. This preference for a non-binding mode is part of a pattern in negotiations undertaken by the Obama Administration, which has the effect of avoiding the creation of internationally legally binding obligations altogether.

An over-reliance on a non-binding approach—and its costs—are most obvious in the all-important emissions reduction (mitigation) obligations known as “nationally determined contributions (NDCs)” identified by each participating state including the United States. In its contribution—expressly not a “commitment”—the U.S. stated its intent to reduce greenhouse gas emissions by 26-28% by 2025, as compared to a baseline of 2005. Despite the willingness of other participants, most notably the 28-member European Union, to accept substantively binding obligations, the U.S. insisted on a non-binding undertaking instead of a binding commitment on this most critical of all elements in the Paris Agreement. In the end, under the Paris Agreement as adopted all NDCS have the same international legal character and are not binding as to result.

It need not have been this way, at least not based on domestic legal constraints in the United States. Although there is some difference of opinion among economists, existing authorities, including the Clean Air Act and regulations promulgated under it, are quite plausibly sufficient to meet the U.S.’s 2025 goal. In 2014, U.S. emissions had already been reduced by 9% relative to 2005. The Executive Branch has not released its underlying analysis, but it is difficult to imagine that the Government would have identified even a non-binding undertaking in its NDC without an exhaustive review. Although the Supreme Court has stayed the President’s Clean Power Plan pending judicial review, the Court’s prior jurisprudence, including an opinion authored by Justice Scalia, broadly supports the Environmental Protection Agency’s power to regulate greenhouse gas emissions from power plants, whether in the precise form of the Clean Power Plan or otherwise.

The Executive Branch has indicated its intention to cement President Obama’s climate legacy by submitting its instrument of acceptance for the Paris Agreement by the end of this year. As of this writing, that has not occurred. But even if it does, the U.S.’s crucial emissions reduction undertaking is still only a non-binding aspiration not governed by international law.

As far as this and other non-binding goals articulated under the Paris Agreement, President Donald Trump, who has voiced scepticism about anthropogenic climate change, need not go through a formal withdrawal process, as required by the Agreement and international law. Instead, he need only say, “The United States changed its mind.” Or President Hillary Clinton might decide that this all-important target is less important than other priorities, especially if there are significant impediments to meeting the goal if the Clean Power Plan is set aside in whole or part on judicial review. As a former Secretary of State she would no doubt provide a more diplomatic justification, but she would be free to do exactly the same—entirely consistently with international law.

David A. Wirth is Professor of Law at Boston College Law School. He is former Attorney-Adviser for Oceans and International Environmental and Scientific Affairs in the Office of the Legal Adviser of the State Department, where he had principal responsibility for all international environmental issues. David a graduate of the Yale Law School and served as law clerk to Judge William H. Timbers of U.S. Court of Appeals for the Second Circuit. He is the author of more than 6 dozen books and articles on international law, and is a life member of the Council on Foreign Relations.

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