D.C. Circuit Rejects Delegation to International Environmental Institutions
Just a quick note to point out that the U.S. Court of Appeals for the D.C. Circuit issued a potentially important decision Tuesday rejecting what it suggested would be an impermissible delegation of administrative authority to decisionmaking bodies created by the Montreal Protocol on Substances that Deplete the Ozone Layer. (This decision would be worth noting even if it did not cite one of my law review articles, but because it does, it is even more important!) I wish I had time to analyze it in greater detail, but here are some key grafs:
Nowhere does the Protocol suggest that the Parties’ postratification consensus agreements about how to implement the critical-use exemption are binding in domestic courts. The only pertinent language in Article 2H(5) states that the Parties will “decide to permit” production and consumption necessary to satisfy those uses that they “agree” to be critical uses. The Protocol is silent on any specific conditions accompanying the critical-use exemption. Post-ratification agreements setting these conditions are not the Protocol.
To illustrate, suppose the President signed and the Senate ratified a treaty with Germany and France to conserve fossil fuel. How this is to be accomplished the treaty does not specify. In a later meeting of representatives of the signatory countries at the United Nations, a consensus is reached to lower the speed limits on all major highways of the signatory nations to a maximum of 45 miles per hour. No one would say that United States law has thus been made.