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02/04/2021

Richard Epstein on the Paris Climate Agreement
Michael Ramsey

At Defining Ideas, Richard Epstein: Biden’s Unlawful Re-Entry Into Climate Accord.  From the introduction:

On January 20, beneath an imposing array of solar panels, President Biden issued an executive order declaring that the United States would rejoin the Paris agreement on climate change. The order stated in full: “I, Joseph R. Biden Jr., president of the United States of America, having seen and considered the Paris Agreement, done at Paris on December 12, 2015, do hereby accept the said agreement and every article and clause thereof on behalf of the United States of America.”       

This executive order raises issues of huge constitutional import. Does the president of the United States have the constitutional power to “accept” the Paris agreement by unilateral action? The correct answer is a decided no. The Paris agreement should be understood first and foremost as a treaty. As such, it should be governed by Article II, Section 2, Clause 2 of the Constitution, which requires treaty ratification by two-thirds of the senators present. President Obama knew that he did not have the votes in the Republican-controlled Senate to ratify the treaty in 2016—hence the initial entry into the agreement via executive order.

The simple question here is whether the obligation to secure Senate approval can be avoided by rebranding the treaty as an “agreement,” as was done in Obama’s and Biden’s executive orders.

And from the core of the analysis:

To be clear, common midlevel executive orders can and should bind the United States past the current president’s term—no one thinks that the United States Senate should be required to deliberate over and consent to a fifteen-year embassy lease negotiated with a foreign government, for example. Nor does anyone think that it is inappropriate to use executive orders to give guidance about the meanings of key treaties. But in both domestic and international affairs, there must be some clear limit on unilateral president lawmaking. 

This issue has not received sufficient attention in the courts, so it is necessary to articulate some line between constitutional treaties and permissible executive orders. Perhaps the best way to frame the inquiry is by focusing on the twin tests of major impact and long duration. When both are present, the agreement is rightly a treaty. But if both are present in lesser degrees, there will be some serious questions about whether the agreement is a treaty or not. Notwithstanding obvious cases of ambiguity, the Paris Agreement clearly falls on the treaty side of the line. The point becomes painfully clear by looking at Biden’s specific agenda items in the executive order. The first is to “immediately begin the process of developing [a] nationally determined contribution under the Paris Agreement”—that is, an intended level of carbon dioxide reduction. He proposes to implement this program through “analysis and input from relevant executive departments and agencies, as well as appropriate outreach to domestic stakeholders.” Missing from this list is any mention of the role for Congress. 

I mostly agree, but as discussed in this post and in my article Evading the Treaty Power?, it's a little more complicated.  The central question is whether the Agreement is binding on the United States on any material matter and, relatedly, whether President Biden will use it as authorization for taking domestic actions he is not otherwise authorized to take.  On the first point I think the answer is yes, though I don't think Professor Epstein establishes it in his post.  On the second point, I think it remains to be seen.  The example Professor Epstein cites in the quote above does not seem to me to prove the point -- the President may just be directing executive agencies to look into the matter of emissions reduction, which he can surely do with or with the Agreement.  The extraordinary amount of congressional delegation to the President in environmental matters may mean that, as a matter of domestic law, the President doesn't need the Agreement as a basis for his authority.  (That doesn't mean the Agreement is constitutional, though -- just that it may be hard to challenge in court.)