Environmental Stewardship

President Obama Bypasses Congress By Formally Committing U.S. to Paris Climate Agreement

News broke earlier this month that both the United States and China have agreed to ratify the Paris Climate Agreement.

Well, at least China has.

Since the People’s Republic of China is currently run by a one-party socialist government, President Xi Jinping can simply order the National People’s Congress to ratify the Agreement. This is significant because China is the world’s largest emitter of greenhouse gases, currently accounting for just over 20 percent of global emissions.

The U.S. situation is a bit more complicated. Article II, Section 2 of the U.S. Constitution clearly states that the President must seek approval from two-thirds of the Senate in order to ratify any treaty. However, President Obama has deliberately skirted these requirements by maintaining that agreeing to the accord is technically an executive action rather than a treaty.

However, Steven Groves of the Heritage Foundation recently wrote that the State Department has established guidelines – called the Circular 175 Procedure (C-175) – for determining whether or not an international agreement should be considered a treaty. C-175 lists eight different factors that the executive branch should give “due consideration” to when determining how to treat such an agreement:

  1. The extent to which the agreement involves commitments or risks affecting the nation as a whole;
  2. Whether the agreement is intended to affect state laws;
  3. Whether the agreement can be given effect without the enactment of subsequent legislation by the Congress;
  4. Past U.S. practice as to similar agreements;
  5. The preference of the Congress as to a particular type of agreement;
  6. The degree of formality desired for an agreement;
  7. The proposed duration of the agreement, the need for prompt conclusion of an agreement, and the desirability of concluding a routine or short-term agreement; and
  8. The general international practice as to similar agreements.

Groves goes on to describe how the Paris Climate Agreement could be applied to each of these eight different factors.

The third factor – whether the agreement can be put into effect without subsequent congressional action – appears to be one of the more significant points of tension. A major component of the Paris Climate Agreement is for countries with developed economies to contribute to the Green Climate Fund (GCF). Money from this fund would be used to aid developing countries develop clean energy technologies and adapt to the effects of climate change. The ultimate goal of the GCF is to disburse $100 billion annually, much of which would obviously have to come from the U.S. treasury and, thus, be appropriated by Congress. This one guideline, by itself, suggests that the agreement should have been handled as a treaty requiring Senate approval.

It is also worth noting that of the 28 parties to the Agreement that to date have submitted their “instruments of ratification, acceptance or approval,” 27 have formally ratified the agreement. The U.S. stands alone as the only party to merely “accept” the agreement.

The recent news of both China and the U.S. ratifying (or accepting) the Paris Agreement is significant because it can only go into effect after at least 55 parties accounting for at least 55 percent of total global emissions of greenhouse gases have signed off. Together, China and the U.S. account for roughly 40 percent of the world’s emissions.














In Depth: Environmental Stewardship

Listen to any news broadcast, read any press release from an environmental advocacy group or simply watch the U.S. Environmental Protection Agency (EPA) propose new regulation after new regulation, and it would be nearly impossible to not come away concerned or even fearful of imminent environmental disaster. It should come…

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