Could you provide a broad overview of the constitutional structure governing the President’s ability to enter into and execute international agreements? Could you then examine the proposed core elements of the new climate treaty/agreement/protocol – mitigation, adaptation, finance, technology development and transfer, and capacity-building and transparency of action and support – currently under negotiation of the Ad Hoc Working Group on the Durban Platform (the “Protocol”) and analyse the constitutional restraints on the President’s ability to enter into international agreements pertaining to each of these core elements?
Summary:
In each of the main subject areas of the Protocol, the President will have the constitutional ability to submit either an Article II treaty or as an ex-post congressional-executive agreement. These two methods of entry into agreements will require subsequent legislative approval. In the mitigation portion of the Protocol institutional barriers may represent a significant obstacle to the use of an ex-post congressional-executive agreement.
If the President wishes to proceed without subsequent approval (under either Article II or pursuant to an ex-post congressional-executive agreement), he will have to rely on a combination of his inherent foreign affairs power, prior legislation and prior treaties to enter into congressional executive or sole executive agreements. However, the President’s legal authority to enter into such agreements is likely weakest, and therefore most susceptible to challenge, in the areas of mitigation and financing contemplated by the Protocol, and strongest in the Protocol’s goals addressing adaptation, technology transfer and capacity building and transparency.
Advice:
1. Overview of U.S. Constitutional Structure for Entry into International Agreements
The following section outlines the various tools available to the President under U.S. constitutional law, for entering into international treaties and agreements as well as the domestic implementation of such agreements. These tools include the Article II treaty power, the ability to conclude congressional-executive agreements, treaty-executive agreement and sole executive agreements and the ability to enter executive orders.
Article II Treaty Power
Under international law, a “treaty” is any legally binding agreement between nations. In the United States, this designation is reserved for an agreement made pursuant to Article II of the Constitution, which provides that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.”[1] The treaty process replaces the normal legislative process, in which a bill requires simple majorities in each of the Senate and House of Representatives. The treaty process bypasses the House of Representatives and requires a supermajority vote in the Senate for adoption.[2] The President controls the negotiation process and submits the completed treaty to the Senate for approval.[3] After approval by two thirds of the members of the Senate, the President ratifies the treaty, formally affirming the United States’ willingness to be bound by it.[4]
While all treaties are regarded as part of the “supreme Law of the Land,”[5] a distinction arises between self-executing treaties and non-self-executing treaties. Self-executing treaties become effective as domestic law upon entry into force and do not require implementing legislation.[6] In contrast, non-self-executing treaties do not become effective as domestic law until implementing legislation is adopted. Treaties have been found to be non-self-executing where: “(1) the agreement manifests an intention that it shall not become effective as domestic law without the enactment of implementing legislation; (2) the Senate in giving consent to a treaty, or Congress by resolution, requires implementing legislation; or (3) implementing legislation is constitutionally required.”[7] As a matter of historical practice, certain types of agreements typically entered into as treaties: agreements concerning mutual defense, extradition and mutual legal assistance, human rights, arms control and reduction, environmental protection, taxation and the final resolution of boundary disputes.
Challenges in Approving Treaties
The Article II treaty process is subject to several drawbacks that erode its efficacy as a tool for international cooperation: treaties are difficult to approve, as the two thirds supermajority threshold makes approval vulnerable to holdup by a small number of dissenting political actors and, to the extent the treaty is not self-executing, difficult to implement even if approved. The supermajority requirement imposed by Article II means that treaties can enjoy broad support of the public and in the Senate yet still not receive approval. Although few treaties are actually rejected, there is no procedure under Senate Rules by which the President can call a vote on a resolution of ratification. Accordingly, a treaty can remain before the Senate indefinitely if the Senate chooses not to act. Achieving the necessary two thirds majority becomes even more difficult when accounting for the modern polarization of American political parties, particularly in the context of climate change legislation.
Once approved, treaties have the status equivalent of federal statutory law — i.e. where inconsistent with the Constitution, the Constitution will prevail, and when inconsistent with another federal statute, courts apply the “last in time” rule, by which the obligation imposed later in time prevails. Where a treaty is not self-executing, implementation requires the support of the President and supermajority in the Senate, as well as further approval by majorities in both the Senate and House of Representatives in order pass implementing legislation. This creates another political hurdle to the execution of Article II treaties.
Executive Agreements
Executive agreements are the primary alternative mechanisms available to the executive branch to enter into binding international commitments. There are several types of executive agreements: (i) congressional-executive agreements, in which Congressional legislation authorizes the President’s actions, which can be authorized either by congressional action after the signing of the agreement, by a prior congressional action or, more generally, by a framework statute that gives the President power to act within a certain sphere,[8] (ii) treaty executive agreements, in which the President’s authority derives from a prior treaty and (iii) sole executive agreements, in which the President’s authority derives solely from powers inherent in the Presidency. Although all executive agreements are binding on the U.S. from an international law perspective, they differ in the manner that they interact with prior inconsistent state and/or federal law. All executive agreements can be overturned by future contrary federal legislation. Furthermore, the enforceability of an international agreement in the U.S. will further depend on whether or not it is self-executing. An agreement which is self-executing has the effect of law in the U.S., whereas a non-self-executing executive agreement, although internationally enforceable, needs additional legislation to put its provisions into effect domestically. Therefore, any agreement seeking to implement the climate change protocol within the U.S. will need to be drafted as a self-executing instrument.
Congressional-executive agreements
Congressional-executive agreements are the most common type of executive agreement. As former Legal Advisor to the State Department Harold Koh points out, “[t]he long-dominant view in the Academy. . . has been that treaties and congressional-executive agreements are in fact interchangeable, legally available options for binding the United States in its international relations.” This viewpoint, however, is not universal. Congressional-executive agreements can be entered into via three possible methods – ex-post authorization, ex-ante authorization, or framework authorization. For ex-post authorization, Congress must pass a bill authorizing the agreement following the President’s entry into the agreement. Such a bill requires majority vote in both houses (as compared to two thirds approval in the Senate for a treaty) and thus ultimately still depends on the President having bicameral political support for the specific agreement. For ex-ante authorization, Congress may pass a bill authorizing the agreement prior to the President’s entry into the agreement. For framework authorization, which has been termed the “modern approach,” (such agreements will be referred to hereinafter as “modern congressional-executive agreements”) the President may work within the confines of a broad enabling framework established by Congress.
Under this approach, Congress “(i) grants the President the authority to negotiate one or more agreements, (ii) establishes somewhat general negotiating objectives for the United States, (iii) requires regular consultation between the executive and legislative branches, (iv) gives life to this requirement by demanding periodic reports from U.S. negotiators and by creating a formal congressional observer group to the negotiations, and, importantly, (v) creates a streamlined review and approval process for Congress to consider both the new agreement and any domestic implementing legislation needed to give the agreement effect under domestic law.” This last method of concluding international agreements is now the most common method used by the President for entering into international agreements. Congressional-executive agreements override inconsistent state law and likely also override inconsistent federal law (although case law on this issue is not settled).
Treaty-Executive Agreements
In contrast with congressional-executive agreements, treaty-executive agreements derive their power from a prior treaty which implicitly or explicitly grant the President authority to enter into further international agreements in order to implement their goals. Such agreements must relate to matters over which “one or both of the political branches of the Federal government have competence under the Constitution”. For example, the UN Framework Convention on Climate Change (the “UNFCCC”) envisages the adoption of new international obligations. Scholars argue, however, that non-self-executing treaties (such as the UNFCCC) cannot be used a basis for entering into executive agreements that involve domestic implementation. Self-executing treaties, on the other hand, are more likely to be used as a source of authority for domestic implementation of executive agreements. Such treaty-executive agreements will override both inconsistent state law and inconsistent federal law.
Sole Executive Agreements
Sole executive agreements are entered into by the President solely on the basis of the authority granted to the Executive Branch under the Constitution. Such agreements are not commonly used and the case law on such agreements is relatively sparse. Sole executive agreements are believed to be unable to have the effect of overturning prior inconsistent federal legislation. However, the Supreme Court has held that such agreements can override and preempt certain domestic state laws in areas where the federal government otherwise has the authority to overturn state law. [9] Generally, sole executive agreements are governed by the framework enunciated by Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (“When the President acts pursuant to an express or implied authorization of Congress, his powers are at their maximum…Congressional inertia, indifference or quiescence may…invite, measures of independent Presidential responsibility…When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter”). Sole executive agreements typically sit in the middle portion of the continuum, in the “zone of twilight” in which Congress is silent.[10] Thus, the President’s authority in any given field will depend on the Constitutional and historic balance of authority in that field. To the extent that they are not necessarily connected to prior or subsequent legislation, these types of executive agreements arguably give the President the greatest amount of flexibility in negotiating and entering into treaties. However, their use is controversial and their legitimacy will likely depend on a variety of factors beyond the mere legality of such an accord.
Executive Orders
In addition to the ability to enter into treaties and executive agreements, the President may implement certain actions via an executive order. Executive orders are directives issued by the President to officers of the executive branch, requiring them to take an action, stop a certain type of activity, alter policy, change management practices, or accept a delegation of authority under which they will henceforth be responsible for the implementation of law.”[11] As with entrance into executive agreements, the President’s ability to act through executive orders is governed by the Youngstown framework. Presidents historically fare “well when their executive orders are challenged by a court”. The effectiveness of an executive order will also depend on the inherent power and ability of the specific agency to implement the desired action.
In the environmental protection arena, executive orders may be issued directing the Environmental Protection Agency (“EPA”) to carry out certain actions. The powers of the EPA to act unilaterally in certain contexts, including greenhouse gas regulation, have recently been upheld by the Supreme Court in Massachusetts v. EPA, 549 U.S. 497 (2007).[12] This decision has provided the President with greater freedom to act on environmental protection. In particular, President Obama has extensively used executive orders to promote his environmental protection goals.[13] To the extent that an executive order is implemented outside of the broader framework of a treaty or executive agreement, such an order would be subject to repeal at any time by a future president.
2. Core Elements of Protocol
The following section will summarize certain proposals in the Protocol and explore possible avenues for action by the United States on proposals in each of the areas of (i) mitigation, (ii) adaptation, (iii) climate finance and (iv) technology. The section also compares those proposals to Executive Orders already implemented by President Obama with respect to climate change. The proposals within the Protocol remain in draft form, with multiple options enumerated for each particular goal. This summary does not attempt to describe every one, only to describe some of the important options, and how these could be effectuated in the United States.
Mitigation
Mitigation Goal Under the Protocol
Mitigation refers to efforts to reduce or prevent emission of greenhouse gases. Mitigation can be achieved through use of new technology and renewable energy, making older equipment more energy efficient or changing practices and consumer behavior.[14] The proposals in the Protocol are intended to require all parties to formulate and implement mitigation measures and adopt policies limiting emissions of greenhouse gases, keeping in mind the respective ability of different countries to meet these requirements.[15]
The proposals for mitigation within the Protocol are based on the target achieved in the 2010 Cancun Agreements decision to limit global average temperature increases to either below two degrees Celsius or less than 1.5 degrees above pre-industrial levels.[16] This long-term global goal is intended to be reached by having all parties to the Protocol agree to progressively enhance mitigation efforts, such that each successive action is more ambitious in type, scope, scale or coverage than those previously undertaken pursuant to the Protocol or previous climate agreements. Under the Protocol, countries are expected to communicate and implement successive mitigation commitments, with developed countries bearing a larger burden than developed countries. Developed countries may be expected to meet quantified, absolute emission reduction commitments, in contrast with developing countries, which are expected to increase emissions to meet social and developmental needs. Developed countries are expected to maintain mitigation commitments at all times, through successive and continuous commitment cycles. All parties to the Protocol are to develop low emission strategies, while developed countries will agree to a time frame for achieving zero emissions. In order to meet mitigation commitments, parties to the Protocol may make use of market mechanisms, but these must be ancillary to domestic action. Implementation of Binding Emissions Targets in the U.S.
Generally, the President will not be able to commit to a domestically binding C02 emissions target without the approval of either two thirds of the Senate pursuant to the Article II treaty process or of simple majorities in both houses of Congress pursuant to an ex-post congressional-executive agreement. Even if the President were able to secure a simple majority in both houses, sufficient to enact an ex-post congressional-executive agreement, political consideration may strongly militate in favor of using the Article II process instead. In particular, the Senate Foreign Relations Committee Report on the resolution of ratification for the UNFCCC specified that any future decision on legally binding emissions targets and timetables would require the use of the Article II treaty procedure. Although not a binding commitment, this statement “strongly suggests that the Senate will jealously guard its Article II prerogatives in ensuring that a future climate agreement is approved under the Treaty Clause rather than as an ex-post congressional-executive agreement.”[17] However, there are certain sectors with respect to which implementing specific target emissions pose a notable exception to this discussion. This is particularly the case in the aviation sector, where, as discussed below, emission targets could potentially be implemented without subsequent congressional approval.
Although executive authority exists to mitigate greenhouse gas emissions domestically, it would be difficult for the President to rely on a sole executive agreement in this area. In Massachusetts v. EPA, the Supreme Court held that greenhouse gases are “air pollutants” subject to regulation under the Clean Air Act (”CAA”).50 This gives the EPA the ability to use its already exiting regulatory authority to address climate change through regulation of greenhouse gases. Thus, the executive branch can take action (and has taken such action) to reduce emissions of greenhouse gases. Mitigation commitments in the Protocol could align with actions that have or will be undertaken through the executive branch to reduce emission of greenhouse gases in the United States. However, commentators believe that the CAA’s coverage of greenhouse gases “does not provide authority for the President to internationally commit to binding emission targets that would be achievable by the EPA under its existing Clean Air Act authority.” Arguably, a binding international commitment to effectuate some specified mitigation target would impermissibly overstep the agency’s mandate in cases where the EPA itself has not already promulgated regulations producing emissions targets. Further, although the United States committed to cutting emission to four percent below 1990 levels by 2020 under the Copenhagen Climate Accord, this commitment envisioned legislative action to enact the desired emission targets.[18] As such, any further commitment will similarly require legislative action to be enforced.
Although the CAA does not appear to be a strong basis for a binding international commitment on climate change, the UNFCCC may represent a potential authority for entry into a treaty-executive agreement. The UNFCCC is non-self-executing, and thus, as discussed above, its ability to serve as a basis for a domestically binding treaty-executive agreement is in doubt. The President is reported to be working on a hybrid proposal under which the binding commitments of the UNFCCC would be reaffirmed and boosted with new voluntary pledges to specific emission level cuts, channeling money to developing nations for adaptation and to reporting progress toward such pledges at meetings as part of a “naming and shaming effort”. The President may also rely on the argument that while the non-self-executing nature of the UNFCCC prevents it from enforcing new international obligations domestically, it may still be the source for entering into such obligations.[19] Thus, the President’s entry into a protocol where mitigation is voluntary and enforced solely on a “name and shame” basis may arguably have stronger grounding in the UNFCCC. At the same time, the precise nature of the commitments that the administration is envisioning remains unclear.
Notwithstanding the foregoing, the curbing of aviation emissions is one area in with respect to which the President may have stronger authority to enter into a treaty-executive agreement. Pursuant to the Convention on International Civil Aviation (the “CICA”) (which is an Article II treaty), the EPA has previously harmonized U.S. aviation emissions standards with international standards. CICA could thus potentially allow the President to enter into a treaty-executive agreement to limit aviation emissions.
Implementation of a Carbon Market
Although the EPA at least arguably may have authority under the CAA to propose and implement emission targets domestic emission targets pursuant to the President’s executive orders (as opposed to action prescribed under a binding international agreement), it is not as clear whether the EPA would have such authority to implement a carbon market. Notably, the EPA’s authority to act in this arena would fall under Section 111 (as well as potentially Section 110) of the CAA, which defines and sets standards for different categories of emitters. Although certain scholars have found there to be a “near unanimous agreement that some form of a national cap-and-trade can be implemented for GHGs within the framework of Section 111 for existing emission sources,”[20] other scholars note that,
“the limits of EPA’s authority to adopt such a scheme under that provision or other sections of the Clean Air Act are ambiguous”[21] and will continue to be litigated and disputed if such a plan is adopted by the EPA as a consequence of an executive order by the President.
Adaptation
Adaptation Goal Under the Protocol
Adaptation refers to adjustments in ecological, social or economic systems in response to the actual or expected effects and impacts of climate change, as well as “changes in processes, practices, and structures to moderate potential damages or to benefit from opportunities associated with climate change.”[22] The proposals on adaptation cover five general components: observation, assessment of climate impacts and vulnerability, planning, implementation, and monitoring and evaluation of adaptation actions.
The Protocol requires that parties commit to adapting to the adverse effects of climate change and achieving sustainable development, particularly in light of the need to begin adaptation efforts far in advance of actual temperature rise. Parties are required to prepare and implement adaptation commitments within national development planning. Further, developed country parties to the Protocol are required to assist developing countries in adaptation, potentially through financial support, technology development and transfer and capacity-building to meet the costs of adaptation to the adverse impacts of climate change. Parties are expected to monitor and report on their policies with respect to adaptation, and enhance learning through information exchange.
Implementation Under the Protocol
Certain adaptation goals could potentially be effectuated under ex-ante or modern congressional-executive agreements based in two separate congressional authorizations regarding international scientific cooperation. First, the 1979 Foreign Relations Authorization Act directs that the President “assess and initiate appropriate international scientific and technological activities…based upon domestic scientific and technological activities of the United States government and which are beneficial to the United States and foreign countries,” charging the Secretary of State with coordination and oversight of international science and technology agreements.[23]
The 1979 International Development Cooperation Act also authorizes creation of an Institute for Scientific and Technological Cooperation, tasked with “assist[ing] developing countries to strengthen their own scientific and technological capacity.”[24] To carry out the purposes of the Institute, the President is empowered to make agreements with domestic or foreign individuals, institutions or governments. These broad statutory authorizations would likely apply to cooperative research relating to adaptation to the effects of climate change, as envisioned by the Protocol. Accordingly, these statutes could provide support for the President to enter into a congressional-executive agreement for cooperation in science and technology in climate change negotiations, as is envisioned by the Protocol’s adaptation proposals which are to be implemented “whether pursuant to existing bilateral agreements or as a new agreement delineating areas for future cooperation and information exchange.” The President could also choose to attempt to use the ex-post congressional-executive agreement approach and seek approval of an agreement from simple majorities in both houses of Congress.
Finance
Finance Goals Under the Protocol
The Durban Platform Negotiating Text includes an array of proposals under its financing provisions. A core provision requires that developed country parties provide climate finance to developing countries in support of the Protocol’s goals. The Protocol emphasizes providing adequate, predictable, and sustainable climate funding. Additionally, it retains, for the most part, the financial mechanism of the UNFCCC (and its Kyoto Protocol) as its anchoring institution. There are many possible funding requirements for developed country parties, including: a commitment to pay a minimum percentage of GNP; a floor of $100 billion per year; pledges or targets to be approved; commitments to scale up resources on a regular or as needed basis; and a short-term collective goal of $200 billion per year by 2030. Other provisions include commitments to encouraging private investment through the use of public funds. The Protocol requires a common transparency framework for the delivery, use, implementation and impact of climate financing. It includes multiple provisions to establish periodic reviews and to implement resulting adjustments to financing.
Aside from direct funding, the Protocol suggests other methods of mobilizing climate finance to further the Protocol’s objectives, such as integrating climate goals in other relevant areas and activities such as agriculture; acknowledging climate finance as separate from official development aid; promoting readiness program domestically and in developing countries; and incentivizing mitigation actions through payments for verified results. This also includes funding and support for REDD-plus. In general, the Protocol requires that investments progressively become low-emission and resilient to climate impacts. The Protocol calls for the phasing down of high-carbon investments and fossil fuel subsidies; a tax on oil exports from developing countries to developed countries; and establishing an international renewable energy efficiency bond facility.
Implementation under the Protocol
Because the Constitution reserves the federal power to tax and spend for Congress, the ability to commit funds under a sole executive international climate change agreement does not appear to be within the scope of the President’s authority.[25] However, the President may have the ability to utilize prior legislation to enter into a congressional-executive agreement to attain certain financing goals under the Protocol. For example, in the International Development and Food Assistance Act of 1977, Congress authorized the President to “furnish assistance…for developing and strengthening the capacity of developing countries to protect and manage their environment and natural resources.” This authorization could encompass the direct funding provisions of the Protocol, since they require parties to finance developing countries’ efforts in support of the Protocol’s goals.
President Obama has also been able to make and execute non-legally binding commitments to provide climate funding in conjunction with Congress.[26] Within the President’s 2010 Policy Directive on Global Development, the Global Climate Change Initiative “aims to integrate climate change considerations into U.S. foreign assistance through a range of bilateral, multilateral, and private sector mechanisms to promote sustainable and climate-resilient societies, foster low-carbon economic growth, and reduce greenhouse gas emissions from deforestation and land degradation.”[27] This has been the primary means through which the Obama administration has articulated climate financing to developing countries.89 However, Congress must authorize periodic appropriations to support financing pursuant to the Global Climate Change Initiative. The President therefore cannot unilaterally procure financing in this area. Along similar lines, in 2014, the United States pledged $3 billion to the Green Climate Fund (GCF), which is a main financing institution specified in the Protocol in its initial fundraising.[28] The pledge amount was not to exceed 30% of the total confirmed pledges from other countries. Such amounts must similarly be taken from funds appropriated by Congress to various executive agencies. Under the Protocol, the President may be able to make similar nonbinding funding commitments, subject to the continued willingness of Congress to appropriate funds toward the agencies which would face such commitments. As in the case of adaptation, the President could also attempt to use the ex-post congressional-executive agreement approach and seek approval of an agreement from simple majorities in both houses of Congress.
While direct funding remains the sole province of Congress, the President may have more latitude to commit to the financing provisions that do not require direct funding.[29] For instance, the President has used executive orders to “identify and seek to remove or reform barriers that discourage investments or other actions to increase the Nation’s resilience to climate change.” As such, it is possible that a similar indirect funding commitment could be made under the Protocol.
Technology development and transfer
Technology Transfer Goals Under the Protocol
The Durban Platform proposes a global goal of supporting technology development and the transfer of technology to developing countries to support mitigation, adaptation, and capacity building.[30] With some potential adjustments, the provisions utilize the existing Technology Mechanism established under the Convention (such as the Technology Executive Committee and the Climate Technology Centre and Network) and any similar institutional arrangements. The Protocol also emphasizes committing resources and support (as detailed in the Financing provisions) to technology development and transfer. Developed countries are asked to support technology needs assessments (“TNA”) in developing countries, and to support the implementation of the TNA outcomes. The Protocol also requires that developed countries commit to regularly assess and communicate technologies that are ready for transfer to developed countries. In addition to increasing access to public sector technologies, the Protocol addresses barriers caused by intellectual property rights through methods that include collaborative research and development, commitments to various licensing arrangements (such humanitarian licensing, patent pools, or joint licensing) and the purchase of IP for the public good.
Implementation under the Protocol
A number of statutes could potentially serve as sources of authority under which the President may potentially enter into an ex-ante or modern congressional-executive agreement concerning technology development and transfer. The Foreign Relations Authorization Act and the International Development Cooperation Act, each discussed above, as well as a number of other statutes and international agreements, authorize the President to act to promote the sharing and development of technology internationally. These statutes, together with the President’s inherent foreign affairs power, could provide a basis of authority for the President to enter into a congressional-executive agreement implementing the technology transfer elements of the Protocol.
Capacity-building
Capacity-Building Goals Under the Protocol
The Protocol embraces a capacity-building goal to enable developing countries to identify, design, and implement adaptation and mitigation action, and to absorb technology and financing support. In addition, there is a proposal to build developing countries’ measurement, reporting and verification (“MRV”) capacity through funding support. The Protocol suggests meeting this capacity-building goal through measures such as support for readiness programs and national contributions from developed countries.
Implementation under the Protocol
The President may be able to rely on a combination of statutory authority and his foreign affairs power to enter in a congressional-executive agreement with respect to capacity-building under the Protocol.[31] For example, the International Development and Food Assistance Act of 1977 explicitly authorizes the President to assist developing countries in capacity building. As discussed above, this statute could provide a framework for the President to enter into an ex-ante or modern congressional-executive agreement in this area.
Transparency of action and support
Transparency Goals Under the Protocol
The Protocol includes provisions requiring transparency of action and support. These provisions aim to measure, report, and verify the implementation of each party’s commitments and contributions under a single common transparency framework. The transparency framework would consider differing national circumstances and priorities, while still ensuring accountability and comparability of metrics. The Protocol suggests utilizing the existing Kyoto Protocol, Cancun Agreement, and Convention transparency guidelines with some potential modifications. This may include MRV of emissions (by source) and removals (by sinks)[32]; maintaining or improving the scope, frequency, timing, and level of detail for reporting and inventories; biennial communications; assessment processes, such as international assessment and reviews and international expert team reviews; a common accounting framework; information on implementing policies and actions; and common methodologies and metrics under various pre-existing or to be formulated guideline. A governing body under the Protocol may also establish, update, and/or enforce specific rules for the transparency framework.
Implementation under the Protocol
Absent a conflicting domestic law, the President’s foreign affairs powers to conduct US diplomacy could potentially allow the President to enter into a sole executive agreement obligating the United States to participate the Protocol’s transparency provision, because such an obligation would go to the process of climate diplomacy. President Obama has issued an executive order requiring 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 – such initiatives could arguably be continued under the Protocol using the President’s executive authority.[33]
In addition, the President may have the ability to enter into a treaty-executive agreement on MRV pursuant to the UNFCCC. As discussed above, the ability of the UNFCCC to serve as a basis for a congressional-executive agreement is limited. However, in the case of MRV it can be argued that the Energy Policy Act of 1992 (the drafting of which overlapped with UNFCCC negotiations) and the reference of several provisions of the Energy Policy Act to the UNFCCC with respect to MRV has arguably authorized certain MRV measures to be executed under the UNFCCC. Thus, the UNFCCC potentially provides a framework under which the President could potentially implement further MRV measures under the Protocol.
[1] U.S. Const. art. II, § 2, cl. 2.
[2] Oona A. Hathaway, Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States, 117 YALE L.J. 1236, 1239 (2008).
[3] Id. United States v. Curtiss-Wright Export Corp. entrenched this principle of executive control over negotiations, declaring,
“the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.” 299 U.S. 304, 319 (1936).
[4] Richard F. Grimmett, ed., Cong. Research Serv., 66-922 CC, Treaties and Other International Agreements: The Role of the United States Senate (2001), at 2 [hereinafter Treaties and Other International Agreements].
[5] U.S. Const., art. VI, cl. 2.
[6] Treaties and Other International Agreements at 4.
[7] Michael John Garcia, Cong. Research Serv., Rl32528, International Law and Agreements: Their Effect upon U.S. Law, (2015), at 12 [hereinafter International Law and Agreements]. See also Harold Hongju Koh, TwentyFirst Century International Lawmaking, 101 GEO. L. J. 725, 72-7287 (2013).
[8] Hannah Chang, International Executive Agreements on Climate Change 2-3, (Columbia Law School Center for Climate Law, 2009), at 2-3; Nigel Purvis, Paving the Way for U.S. Climate Leadership: The Case for Executive Agreements and Climate Protection Authority 16-17, (Resources for the Future, 2008).
[9] Curtis A. Bradley, International Law in the U.S. Legal System 89 (2d ed. 2015)(discussing American Ins. Assn. v. Garamendi, 539 U.S. 396 (2003).
[10] See also Dames & Moore v. Regan, 453 U.S. 654 (1981).
[11] Alaine Ginnochio & Kevin Doran, The Boundaries of Executive Authority: Using Executive Orders to Implement Federal Climate Change Policy 5 (University of Colorado Law School Center for Energy & Environmental Security, 2008).
[12] Robert V. Percival, Presidential Power to Address Climate Change in an Era of Legislative Grodlock 32 VA. ENVTL. L.J. 134, 135 (2014). Note however that the EPA’s regulatory scope continues to be challenged in court. See, e.g. Murray Energy Corp v. U.S. Environmental Protection Agency (argued before the D.C. Circuit in 2014).
[13] The President’s 2013 Climate Action Plan is an example of President Obama’s use of executive orders. The Climate Action Plan, inter alia, directs federal officials to “work with states, cities, and local communities to support climate-resilient investment and to remove policies that increase vulnerabilities,” orders the EPA to incorporate climate change impacts and adaptive measures into programs, such as the Clean Water and Drinking Water State Revolving Funds and directs the Department of the Interior to issue permits for an additional ten gigawatts of renewable energy projects on public lands by 2020.
[14] Climate Change Mitigation, United Nations Environment Programme, http://www.unep.org/climatechange/mitigation/.
[15] Geneva Climate Change Conference, ADP 2–8 , Geneva, Switzerland, February 8-13, 2015, Negotiating text, Section F, FCCC/ADP/2015/1 (Feb. 25, 2015), at 17-49, available at http://unfccc.int/resource/docs/2015/adp2/eng/01.pdf [hereinafter the Durban Platform].
[16] Mitigation, UN Framework Convention on Climate Change, http://unfccc.int/focus/mitigation/items/7169.ph.
[17] Id. President Obama has already undertaken actions relating to cutting domestic greenhouse gas emissions through executive orders, which are targeted to like goals contained in the Protocol’s mitigation proposals. In 2009, he issued an executive order requiring federal agencies establish targets to control their greenhouse gas emissions, increase energy efficiency and reduce waste, among other things. Exec. Order No. 13,514, 74 Fed. Reg. 194 (Oct. 5, 2009). In June 2013, President Obama announced a comprehensive executive approach on climate change in his Climate Action Plan (Plan). Exec. Office of the President, The President’s Climate Action Plan (2013) [hereinafter President’s Climate Action Plan], available at https://www.whitehouse.gov/sites/default/files/image/president27sclimateactionplan.pdf. In September 2014, President Obama issued an Executive Order directing that agencies “continue seeking opportunities to help international partners promote sustainable low-emissions development.” Exec. Order No. 13,677, 79 Fed. Reg. 58229 (Sept. 26, 2014). Massachusetts v. EPA, 549 U.S. 497, 532 (2007).
[18] David Biello, U.S. Commits to Greenhouse Gas Cuts under Copenhagen Climate Accord, Scientific American (Jan. 29, 2010), https://www.scientificamerican.com/article/us-commits-to-greenhouse-gas-cuts-under-copenhagen-accord/.
[19] Harvard Law Professor and former head of the Office of Legal Counsel at the Department of
Justice Jack Goldsmith has suggested that he “seriously doubts” that the President would be able to “commit the United States to international legal obligations” of the sort and degree discussed in the New York Times article. Goldsmith further argues that “even if what the President signs is somehow ‘legally binding’ under international and even domestic law, that obligation wouldn’t force Congress to ‘enact domestic climate change policies’ or to ‘channel money to poor countries to help them adapt to climate change.” Jack Goldsmith, Behind the NYT Climate Accord Story, Lawfare Blog (Aug. 27, 2014).
[20] Jacob Kavkewitz, Jamming the Square Peg Through the Round Hole: EPA’s Options for Implementing Efficient Climate Change Regulation Under the Clean Air Act, 4 ARIZ. J. ENVTL. L. & POL’Y 1001, 1004 (2013).
[21] Patricia Ross McCubbin, Cap and Trade Programs Under the Clean Air Act: Lessons from the Clean Air Interstate Rule and the Noåxç Sip Call, 18 PENN ST. ENVTL. L. REV. 1, 23 (2009).
[22] Adaptation, UN Framework Convention on Climate Change, http://unfccc.int/focus/adaptation/items/6999.php.
[23] U.S.C. §§ 2656c(a), 2656d.
[24] U.S.C. §§ 3502-03 .
[25] U.S.C. § 2151p(b).
[26] Graciela Kincaid and J. Timmons Roberts, No Talk, Some Walk: Obama Administration First-Term Rhetoric on Climate Change and US International Climate Budget Commitments, 13 GLOBAL ENVTL. POLITICS 4, 52-53 (describing the Obama administration’s non-binding commitments in the Copenhagen Accord to collectively provide $30 billion in initial financing by 2012 which scaled up to $100 billion a year by 2020; and also describing the various methods by which the Obama administration requested such funding from Congress).
[27] Richard K. Lattanzio, Cong. Research Serv., R41845, The Global Climate Change Initiative (GCCI): Budget Authority and
Request, FY2010-FY2016 (2015). See also The White House, President Obama’s Development Policy and the Global Climate Change Initiative (2011), available at https://www.whitehouse.gov/sites/default/files/Climate_Fact_Sheet.pdf
[28] White House Office of the Press Secretary, Fact Sheet: United States Support for Global Efforts to Combat Carbon Pollution and Build Resilience (Nov. 15, 2014), http://wh.gov/iaWJE.
[29] However, this relative ease would not include the phasing down of fossil fuel subsidies or the implementation of a tax on oil imports, as these may directly conflict with Congress’s determinations and powers. 94 Exec. Order No. 13,653, 78 Fed. Reg. 66819 (Nov. 1, 2013).
[30] Durban Platform, at 129 (This provision includes a specific goal of meeting the technology requirements for achieving an emission pathway to limit the global average temperature increase to the 2 degree Celsius or 1.5 degree Celsius goal).
[31] U.S.C. § 2151p(b).
[32] The Proposal also suggests requiring information on quantified economy-wide emission reduction targets, as well as the use of market mechanisms.
[33] Exec. Order No. 13,677, 79 Fed. Reg. 58231 (Sept. 26, 2014). See also Exec. Order No. 13,653, 78 Fed. Reg. 66819 (Nov. 1, 2013) (also requiring the development and provision of information on climate preparedness and resilience).