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01/20/2021

Does the Paris Climate Agreement Require Senate Approval?
Michael Ramsey

Mat Margolis argues that it does: Biden Cannot Legally Get Us Back Into the Paris Climate Accords; Here's Why.  (Via Instapundit.)  Although I think the issue is more complicated than his post suggests, I agree with its bottom line: the Agreement is a treaty in the original constitutional meaning of that term.  I wrote about this issue for the Florida International University Law Review back in 2016 when President Obama signed the agreement, in Evading the Treaty Power?: The Constitutionality of Nonbinding Agreements.  Here's my conclusion on the Paris agreement (some extensive footnotes omitted): 

It is not clear that this characterization [of the agreement's material terms as nonbinding] solves the constitutional problem, however. That is so for two reasons. First, it is not clear that the Agreement’s specific binding provisions are sufficiently minor to justify the use of an executive agreement rather than a treaty. For example, Article 4.2 states that “[e]ach Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures with the aim of achieving the objectives of such contributions.” Thus the United States must identify target emissions goals (“nationally determined contributions”) and must take some (unspecified) mitigation measures (even though the emissions goals themselves are nonbinding). If a future President or Congress decides the target goals process is not worthwhile, the process cannot be discontinued without violating a binding obligation (and the United States must remain a party to the Agreement for at least three years, per Article 28).

Second, irrespective of the specific binding commitments, the agreement binds the United States to a general goal of reduced carbon emissions for an extended time, even though the implementation of that goal is left nonbinding. For the future, the United States is not committed to any specific level of emissions, but it is committed to the general policy of reducing emissions.62 Unlike truly nonbinding agreements, a future President cannot change that policy without violating international law. If a new President thinks global warming is overstated as a threat, or that emissions reductions will not materially mitigate the threat, the President is not free to articulate or act on that view.

This seems to be a material commitment on the part of the United States. To be sure, the line between treaties and executive agreements is ill defined—and is probably not capable of precise definition given the ambiguity of the original sources.  However, it is not clear that a commitment of this magnitude has previously been made as an executive agreement (rather than as a treaty, a congressional-executive agreement, or a nonbinding agreement) in the past.

This remains my view, though on reflection I would put it more strongly.