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The Hard Reality for International Climate Agreements in the United States APRIL 2014

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The Hard Reality for International Climate Agreements in the United States APRIL 2014 Atlantic Council ENERGY & ENVIRONMENT PROGRAM ISSUE IN FOCUS BY F. WILLIAM BROWNELL AND SCOTT J. STONE The Hard Reality for International Climate Agreements in the United States APRIL 2014 Energy & Environment Program The release of the second installment of the Intergovernmental Panel on Climate Change’s Fifth Assessment Report on March 31, 2014, provoked the The Atlantic Council’s Energy and Environment usual calls for urgent and immediate action in Program is dedicated to identifying and response to climate change, including in particular at understanding the complex economic, social and the international level in the form of a new climate1 technology factors impacting the availability, treaty built upon domestic regulatory regimes. Irrespective of whether these calls for action are accessibility and affordability of energy resources. overly strident or carefully measured, the law plays a The program focuses on the implementation central role. In almost any discussion, the breadth and challenges associated with maintaining economic stringency of national and sub-national regulations competitiveness while using a full portfolio of and the extent to which a treaty can make them energy supplies and demand actions to transition “legally binding” assumes paramount importance. But towards a low carbon energy system. this emphasis on law is misplaced, because it runs The Obama Administration’s Pursuit of headlong into the hard reality that would confront any Legally Binding Commitments international climate agreement in the US Senate. And achievablegiven the soaring opportunities use of coal to develop around andthe world,deploy it also advanceddraws attention coal technologies and resources that away would from allow far the more In his Climate Action Plan, President Obama outlined an expansive agenda to advance his administration’s climate change policies in various international world’s most abundant, accessible, and affordable forums involving2 trade, environmental, energy, and energy resource to meet critical energy needs in security issues. For the multilateral negotiations balance with each country’s environmental, economic, under the United Nations Framework Convention on and security priorities. Climate Change (UNFCCC), the president was unequivocal: his goal is a new, comprehensive agreement to reduce greenhouse gas emissions from the world’s largest emitting countries while providing financial and technical assistance to poor and See, e.g., underdeveloped countries. at 1 Adam Matthews and Terry Townshend, “Climate change laws: The President’s Climate Action Plan, time to act on the IPCC report?” The Guardian (March 31, 2014) at http://www.theguardian.com/global-development-professionals- 2 Executive Office of the President network/2014/mar/31/ (June 2013) 17–21 at www.whitehouse.gov/.../president27sclimate ipcc-climate-change-talks-national-legislation. actionplan.pdf (hereinafter “Climate Action Plan”). F. William Brownell is a partner and Scott J. Stone is counsel in the law firm of Hunton & Williams LLP. At recent international negotiating sessions under the maintain a specific [emission-reduction] commitment UNFCCC, the administration has joined numerous in a schedule, provide clarifying information, report8 on other governments in support of a new agreement to implementation, follow accounting provisions, and be negotiated by 2015, and to take effect The by 2020. president This subject its implementation to review by others.” post-2020 agreement would then define3 climate policy through the middle part of the century. Many climate treaty proponents would go further and described his vision for this new agreement as seek an agreement capable of fully internationalizing a country’s domestic regulatory programs. Some imposing varying but substantial emission-reduction obligations on all countries—not just developed 4 proponents have even advocated escalator-type countries, as was the case with the Kyoto Protocol. provisions intended to increase the stringency of The administration also expressed its preference for standards over time in a self-executing manner, such an approach that builds upon domestic regulation, as that the emission-reduction commitments undertaken opposed to a “top-down” Kyoto Protocol–type by a country at a treaty’s inception could automatically approach isthat supposed would impose to produce sovereign-level policies that better ratchet upward, exposing that country to greater and obligations. At least in theory, this “bottom-up” greater liability for its emissions irrespective of9 whether it is actually capable of reducing them. reflect economic and technological5 realities within As discussed below, any attempt to create each country and sector. “internationally legally binding” commitments in a The Durban round of negotiations in 2011 placed the future climate agreement will encounter obvious and Parties to the UNFCCC on a path toward a new significant constitutional barriers to formal US agreement by the end of 2015. The Durban outcome, participation, given the legal necessity of Senate ratification and the exceptional political dynamics that however, withstated legal that force the Parties6 would seek to negotiate a “protocol, another legal instrument, or an agreed attend the issue of climate change in the United States. outcome .” Todd Stern, the US special But more than that, any such attempt could undermine envoy for climate change, described this by saying that opportunities for the United States to demonstrate its customary role as a leader in developing new energy legallythe Parties binding, “are and discussing the role athat variety both of international ideas with and regard to which elements of a new agreement would be technologies and helping to ensure their dissemination 7 around the world. Simply put: advancing conceptual domestic bindingness might play.” elements of climate policy should not take precedence over advancing technologies capable of reducing In a recent submission to the UNFCCC, the Legalactual emissions. Constraints on US Climate administration indicated it could accept an Treaty Making international regime that imposes external monitoring and verification protocols on the US government and, Senate Ratification Requirement for potentially, US businesses. Specifically,will the be US International Agreements internationallysubmission said: legally “We assumebinding that certain elements [of a future treaty’s mitigation program] , including that a Party whenAmerican using presidents the presidency enjoy tosubstantial express an discretion Climate Action Plan, when formulating foreign policy and, in particular, 3 at 21. at 4 “Remarks by the President on Climate Change,” The White House, Office administration’s preferences, goals, and other of the Press Secretary (June 25, 2013) http://www.whitehouse.gov/ ambitions. But translating those preferences into See The Hartwell Paper: A New Direction for Climate the-press-office/2013/06/25/remarks-president-climate-change. Policy After the Crash of 2009, affirmative international law, for purposes of 5 Gwyn Prins, et al., constraining the United States and other nations Institute for Science, Innovation and at Society, University of Oxford, and the McKinder Programme, around the world, requires a discrete legal hereinafter London School of Economics (May 2010) http://eprints.lse.ac.uk/ architecture, usually in the form of a treaty, and the 6 Decision 1/CP.17, Establishment of an Ad Hoc Working Group on the Durban 27939/ ( “Hartwell Paper”). approval of the US Senate. Platform for Enhanced Action, 8 US Submission on Elements of the 2015 Agreement at 17th Conference of the Parties to the United Nations Framework Convention on Climate Change (February 12, 2014) The Shape of a New International Climate Agreement, Greenpeace: The Warsaw Demands, (December 2011) (emphasis added). http://unfccc.int/bodies/awg/items/7398.php (emphasis added). in Warsaw, 7 Todd D. Stern, 9 Greenpeace International / at Delivering Concrete Climate Action: Towards 2015, Chatham House Greenpeace Germany (November 22, 2013) (“As such, Parties hereinafter Shape of a New (October 22, 2013) http://www.chathamhouse.org/publications/ must agree on: . an adjustment procedure or ratcheting-up mechanism to International Climate Agreement papers/view/195103 (emphasis added) ( “Stern, allow for the increase of emission reduction efforts, simply and in ”). response to the latest science. .”). 2 ATLANTIC COUNCIL Congressional-Executive and Sole-Executive International Agreements Article II of the US Constitution states that the president “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided Apart from treaties, the United States has entered two-thirds of the Senators present concur. .” When other types of agreements, including congressional- transcendthe benefits political of the United parties States and capture joining aa bipartisanmultilateral executive agreements (where the president is agreement are sufficiently clear and tangible as to explicitly or implicitly authorized by domestic legislation to enter the agreement, either in advance of majority of at least sixty-seven senators, the United or after the international agreement has been signed); States has been a willing and able participant on the agreements pursuant to treaties (where the international stage. Indeed, over the past century, the agreements are authorized by and ancillary to a Senate has failed to ratify only two major treaties previously ratified
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