Five months into his administration, President Trump announced, as promised, that he was notifying the United Nations climate secretariat of U.S. intention to leave the Paris Agreement on climate change.
The agreement is the successor to the 1997 Kyoto Protocol, a predictably failed attempt to commit the developed world to various targets and timetables reducing emissions of carbon dioxide caused by economic activity (which is why it failed). All agreed that Kyoto was a treaty, and all agreed that it could never gain the two-thirds vote required by Article II of the Constitution for ratification, giving it the force of law.
With President-elect Joe Biden projected to be sworn in as president on Jan. 20, Trump should submit the Paris Agreement to the Senate as a treaty — now. Like Kyoto, it will most certainly fail.
Is the Paris Agreement a treaty? Immediately subsequent to the 1787 Constitutional Convention, Alexander Hamilton wrote a rather clear description of what constitutes one in Federalist 75, noting that it is “the operation of treaties as laws” that required legislative approval.
Indeed, the Paris Agreement does contain legal requirements. Each participant must submit and regularly revise their intended reductions in greenhouse gas emissions. That sounds like a treaty.
It was always intended as such. The Paris Agreement was first proposed at the U.N. Climate Change Conference in Durban, South Africa, in 2011. According to the U.N., the purpose was to produce a new “legal instrument or other outcome with legal force by 2015.”
That the Paris Agreement looks and quacks like a treaty has long been known. So, let the Senate take it up, and it will fail ratification. Then, on Jan. 20, a Biden administration will issue an executive order rejoining it.
What will happen if Trump submits the Paris Agreement to the Senate, it fails to obtain the requisite concurrence of “two-thirds of the Senators present,” and Biden proceeds to rejoin the agreement anyway? Inevitably, someone who is harmed by Paris (say, the fracking state of North Dakota) is going to be in court pointing out that the president is enforcing something that the Senate said explicitly he could not.
That will likely work its way up to the Supreme Court. Remember that in 2016, an earlier, less conservative court put a hold on the Obama administration’s Clean Power Plan — a very expensive, intrusive contraption that would have put coal out of business sooner and fracking later. They did so because it was an executive order so sweeping that it overstepped executive bounds. The current court would seem very likely to rule in a similar fashion over a rejected Paris Agreement.
Assuming that the Republicans win at least one of the Georgia runoffs, they will retain Senate control. Biden is likely going to have to rely on a “pen and a phone” to execute emissions reductions.
In that scenario, a President Biden would have limited authority to order climate change policy anyway. If the Senate nixes the Paris Agreement and the Supreme Court limits sweeping executive orders on climate, he probably will have no window at all.
Patrick J. Michaels is a senior fellow in energy and environment at the Competitive Enterprise Institute.
