Kyoto II as Congressional-Executive Agreement: The Emerging Strategy?

Kyoto II as Congressional-Executive Agreement: The Emerging Strategy? By Christopher C. Horner
The Federalist Society, February 16, 2009

The new Obama administration generated great expectations, not least among those seeking to craft a successor treaty to the 1997 Kyoto Protocol on “global warming.” Yet early signals that an Obama administration had no plans to join Europe in agreeing to a successor pact next December, as expected, indicated that this issue would instead prove a stunning disappointment to its champions. Now, however, it appears that Kyoto will be the subject of a controversial effort to sharply revise U.S. environmental treaty practice.

Those parties with high hopes include a broad array of interests: rent-seeking companies, countries, pressure groups and supranational organizations. European Union countries, for example, seek to maintain certain treaty advantages similar to those in the original pact, off ering possible avoidance of pain and even financial reward. These included artifices such as the 1990 baseline year against which performance is measured, to give them credit for Kyoto-based greenhouse gas (GHG) emission reductions actually resulting from the post-1990 economic collapse in Central and Eastern Europe. Combined with the ability to pool emissions, this set provided the EU a less onerous path to complying with Kyoto’s terms.

Others include exempt, major emitting parties such as China, India, Mexico, Indonesia, Brazil and South Korea. And, of course, Russia hopes to perpetuate wealth transfers helping them modernize their energy infrastructure in the name of combating what remains the subject of a scientifically controversial theory. All of these factors contributed to the Bush administration declining to pursue Kyoto ratifi cation. Kyoto covers GHG emissions among 37 countries, from 2008-2012. To avoid a gap between regimes, it is generally agreed that a new pact must be adopted at the scheduled meeting in Copenhagen, December 2009. That event was expected to serve as the platform for Kyoto II symbolizing Obama’s break with the Bush foreign policy.

The long held presumption was that whomever succeeded Bush would accept U.S. participation in a “binding” pact, even one which still selectively covers only a handful of wealthy nations. This, the story went, would remove the one remaining obstacle to a successful international regime, namely U.S. opposition. The latter assumption is largely a myth, given that the U.S. signed the 1997 Kyoto treaty but neither the Clinton nor Bush administration sought ratifi cation. Also, there is nothing in the Constitution or statute requiring a president to formally ask the Senate to ratify a signed agreement, only tradition. No senator has showed any interest in forcing matters, likely due to the absence of the two-thirds vote necessary for such an agreement under Article II, Section 2 of the Constitution.

EU officials readily admit a commitment to the issue of “climate change” as a means to establish a “European” political identity. As such, their self-described “world leadership” is at stake, and the tremendous “loss of face” that Europe risks in the event that no new treaty is agreed is an express consideration. Unwelcome realities—such as the initial treaty’s failure to reduce emissions, even with great costs, including massive wealth transfers and capital fl ight (“carbon leakage” to exempt nations)—rarely intrude.

So, the narrative has thrived—Bush “rejected” or “withdrew from” Kyoto in some stark contrast to the Clinton administration—and set the stage for a dramatic gesture by his successor. U.S acceptance of Kyoto’s successor was to revive Kyoto as a viable international political and legal enterprise, even if the U.S. was the sole additional country to volunteer to bind its economic fortunes under this pact since it was hatched more than a decade ago.

Full paper here.