How to Achieve US Ratification of a New Climate Agreement: A Response to Nigel Purvis by Daniel Bodansky

[Daniel Bodansky is a Professor at the University of Georgia Law School]

In the international climate change negotiations, new ideas are a scarce commodity.  After almost twenty years of intensive work, most of the low-hanging fruit have already been plucked, and progress tends to be more incremental – a refinement to the possible types of emissions targets here, a new variation on a financing scheme there – these are the focus of attention.

So Nigel Purvis’s proposal to enact US Climate Protection Authority legislation is no small achievement.  It represents a bold idea to break one of the central impasses in the international climate change process: securing US ratification of a successor to Kyoto.  The proposal has two parts.  First, the Obama administration would work with Congress to define the elements of an acceptable international deal, through adoption of fast-track authority.  Second, the resulting international agreement would be submitted for legislative approval by Congress, as a Congressional-Executive agreement, rather than as an Article II treaty requiring advice and consent by 2/3 of the Senate.  Both parts have the same function – to maximize the odds of US ratification – but they operate independently.

Few would disagree about the desirability, in principle, of seeking more Congressional buy-in to the US negotiating position internationally.  But doing so would involve broadening the current debate about US climate legislation from a debate focussing primarily on domestic policy (in the form of the Waxman-Markey bill) to one that also included international policy.  With the Waxman-Markey train leaving the station, there is little appetite at the moment for injecting new issues into the debate.  And even when Congress decides to focus more on international policy, it’s unclear whether it would be willing to adopt a pre-commitment strategy by providing fast-track authority, given the political volatility of the climate change issue.

With respect to the second part of Purvis’s proposal, the idea of a Congressional-Executive agreement has much to recommend it.  As Oona Hathaway has shown, Congressional-Executive agreements have considerable historical precedent.  They have greater democratic legitimacy than Senate-approved treaties.  And they make it less likely that important international agreements will be held hostage to the vagaries of Senate procedures, as has been the case with the Law of the Sea Convention.  Indeed, John Yoo – who recently came out against the idea in a New York Times op-ed – made many of these arguments himself in support of Congressional-Executive agreements in an earlier incarnation.

That said, the choice between a Congressional-Executive agreement and a treaty ultimately depends on a political calculation: Would it be easier to get 60 (or perhaps only 50) senators to approve a Congressional-Executive agreement than to get 67 senators to approve a treaty?  Purvis assumes that 60 votes are easier to obtain than 67, but this isn’t necessarily true, since some Senators might oppose a Congressional-Executive agreement simply in order to preserve the Senate’s special prerogatives in the treaty approval process.  Indeed, presenting a climate agreement for Congressional rather than Senate approval could give some senators a convenient procedural excuse to hide behind, rather than having to oppose the agreement on substantive grounds.

Regardless of whether Purvis’s specific proposal is politically persuasive, it highlights one of the central challenges in the climate change negotiations, namely to align US domestic climate policy with its international negotiating stance.  The failure to do so spelled doom for the Kyoto Protocol. The Clinton Administration’s assumption that it could negotiate a treaty internationally that would drive action domestically proved to be a colossal miscalculation. Having been burned by Kyoto, many have now veered to the opposite extreme, concluding that the US should not agree to anything internationally that goes even an inch beyond what Congress has already pre-approved domestically.  This approach would certainly make an international agreement as cost-free as possible to the United States. (Indeed, if an international agreement simply mirrored existing domestic climate legislation, then it might even be adopted as a sole Executive agreement, like the US-Canada Air Quality Agreement, rather than as a Congressional-Executive agreement.)  But such an approach would eviscerate US negotiating leverage. If the United States took the stance that it would agree internationally only to what it had already decided to do domestically, it would lack any quo to offer in return for the quid of action by China or other major economies.

To my mind, the only sensible solution is for the United States to take a two-track approach (like the EU), articulating what it is willing to do domestically on its own, and how much more it would be willing to do in return for action by other big emitters such as China.  A decision to do a certain amount unilaterally would show much needed leadership.   An offer to do more in exchange for reciprocal action by others would give US negotiators much needed leverage.  And if these positions had buy-in from Congress in advance, through the enactment of Climate Protection Authority, as Purvis proposes, that would give the US much needed credibility.  Those three ingredients – leadership, leverage and credibility – may not be sufficient to produce a successful outcome in Copenhagen.  But they are certainly necessary.