What are the necessary procedural steps required for the US government to ratify/accede to a new climate agreement without the involvement of parliament/congress following signature in Paris?
An overview of the mechanism by which the President of the United States may enter into executive agreements without the advice and consent of the Senate is below. While the circumstances under which the President is able to enter into an executive agreement are highly context-dependent, below are a few key points for consideration.
Although a treaty requires submission to the Senate for approval and ratification after entry, executive agreements do not have an equivalent approval mechanism. As noted in the accompanying chart, executive agreements can therefore become effective immediately upon signing (or at such time as is specified by the agreement).
The President is subsequently required to transmit the executive agreement to Congress within 60 days of the agreement’s entry into force, pursuant to the Case-Zablocki Act.
The President may proceed in a number of ways in executing the agreement, depending on the specific action to be implemented and the source of the President’s authority for entry into the agreement. Examples may include some of the following:
- The President can utilize executive orders to take certain actions, pursuant to an executive agreement, that are within his Constitutional authority or have otherwise been delegated to him by Congress. In the environmental context, the President may proceed by directing the Environmental Protection Agency to take certain actions.
- The President can rely on powers delegated to him by legislation such as the 1979 Foreign Relations Authorization Act to enter into and execute agreements pertaining to joint research, technology transfer and knowledge sharing and legislation such as the International Development and Food Assistance Act of 1977 to assist developing countries in capacity building.
- The President could potentially rely on his foreign affairs power to instruct agencies with international development programs to monitor progress on climate-resilient development considerations, and to make information collected on climate-change impacts available to other countries and could potentially rely on the UNFCCC to implement certain MRV measures.
- To the extent that the President will need to make funding appropriations to comply with any commitments under the agreement, it is likely that he will need to rely on an appropriation previously authorized by Congress, as the President is not able to provide direct funding under his sole executive power.
- While it is not likely that the President is going to be able to implement a binding emissions commitment under an executive agreement, he may be able to rely on the UNFCCC for entry into a voluntary “name and shame” based emissions protocol where any emissions target would be non-binding.
In the case of any of the above actions, the President will need to remain cognizant of domestic political considerations, which could substantially hamper his ability to act on any of the above fronts.
Furthermore it is important to bear in mind that the President’s ability to enter into executive agreement without subsequent approval from Congress is significantly constrained by the need for the action to be within the scope of the President’s inherent executive power or, alternatively, be authorized by a prior statute or treaty.