The Case for Climate Protection Authority

[Nigel Purvis is the President of Climate Advisers]

Climate change presents a clear and growth threat to the United States and the world.  America now has an important opportunity to lead.  Congress is moving toward enacting comprehensive climate legislation.  The House Energy and Commerce committee recently approved a “cap-and-trade” bill (Waxman-Markey) that would reduce U.S. emissions 17% below 2005 levels by 2020.  This bill is expected to pass the House this summer with Senate debate anticipated this fall.  Internationally, the United States is negotiating a new global climate agreement for the period beyond 2012, when the emissions mitigation commitments in the 1997 Kyoto Protocol expire.  President Obama and other global leaders hope to conclude this new agreement late this year in Copenhagen, Denmark, at the next meeting of the parties to the U.N. Framework Convention on Climate Change.

The fundamental challenge facing the United States on climate policy is making these two separate tracks come together.  U.S. domestic legislation must contribute to a genuine global solution but global arrangements must also fit or alter domestic political realities.  New domestic legislation designed to bring these two legal processes together, Climate Protection Authority, is essential.  Here is how it would work.

First, in consultation with Congress, the president would decide that future climate and energy agreements are to be approved by the United States by statute rather than as treaties. Statutes require a majority in both houses of Congress, whereas treaties require two-thirds of only the Senate. Federal courts have repeatedly upheld the constitutionality of bicameral statutory approval of international pacts – commonly called congressional-executive agreements. In fact, the United States enters into far more international agreements this way than by treaty, including some arms control agreements and environmental pacts and almost all trade deals.

Second, Congress should spell out in an international title in cap-and-trade legislation the conditions necessary for U.S. participation in new climate and energy agreements. For example, it should describe the role we envision for China, India and other major developing countries.  It should also make plain how, if U.S. conditions are met, the United States will help developing nations adapt to climate change and acquire clean energy technologies to enable them to pursue low carbon economic growth.

Third, cap-and-trade legislation should create a clear procedural pathway for new climate and energy agreements that meet these congressional preconditions. Good agreements should come into effect for the United States either without further congressional review or, more likely, pursuant to the streamlined approval process Congress has used for most trade agreements.  Trade Promotion Authority usually commits Congress to review new trade deals within ninety days with no holds, filibusters or amendments, and only a simple majority of both houses is required to approve these pacts.

The legal basis for Climate Protection Authority is clear and explained in the latest issue of the Virginia Journal of International Law.  The policy reasons for this approach are compelling.

Like trade and arms control agreements, energy and climate pacts are lengthy to negotiate, hard to undo and negotiated in successive “rounds.” This means that both ends of Pennsylvania Avenue need to work together upfront to make the agreements come out right and have in place procedures to ensure approval of agreements the United States actually negotiates.  And like trade talks, climate negotiations resemble the constant tinkering of domestic legislation far more than the long-lived treaties that the founders envisioned.  Statutory approval of climate change congressional-executive agreements would acknowledge this reality.

The Constitution gives a special role to the House on economic issues. Major energy legislation and negotiation will affect every sector of the economy and should come before the full Congress, not just the Senate.

Other nations would be more likely to meet our terms, for they have come to distrust our treaty-making process. These countries are reluctant to make politically difficult concessions only to see the United States stay out of the agreement in the end. By creating a workable approval process for agreements that meet enumerated statutory conditions, the path to U.S. participation would become clear and U.S. negotiators would be able to extract needed concessions.

It’s unrealistic to think Congress has the time and attention to take up domestic legislation and an international agreement separately (in whatever order). It is even more unrealistic to assume that an international treaty would be consistent with U.S. legislation and congressional wishes unless Congress has created in advance a process that helps ensure this alignment.  In twenty years of climate diplomacy neither Congress nor the Senate has given the President of the World a clear blueprint for U.S. global leadership on climate change.  The 1997 Byrd-Hagel resolution merely advised President Clinton to avoid signing what would become the Kyoto Protocol and more recent calls by the Senate for U.S. leadership have been general and vague.  America needs a well-defined plan for climate cooperation and that plan should have the force of law.

President Obama and Congress together have an opportunity to overhaul U.S. energy policy and build a durable global framework for protecting the climate. Given the challenges involved, they would be wise to create new Climate Protection Authority that moves the domestic and international transactions in tandem now.