On September 3, ahead of the start of the G-20 Summit in Hangzhou, China’s Parliament ratified the Paris Climate Agreement. This was followed by a joint communication handed over by President Obama and Premier Xi Jinping to the UN Secretary-General, expressing their readiness to convey the instruments of ratification of their countries to him early. This would facilitate the coming into force of the Agreement by the end of this year.
Despite this dramatic and definitive declaration, doubts linger on whether President Obama can honour his commitment in such a short time. He is sanguine that he can do so by exercising his executive powers without referring the Agreement to the Senate for its “advice and consent”.
His reading of the Agreement is that it is not a fresh treaty but only an “executive agreement” to put into operation the already ratified UN Framework Convention on Climate Change, 1992. Again, according to him, the provisions of the Agreement are not legally binding on the US and hence it is not a treaty.
Too optimistic
One can appreciate the earnestness of an outgoing President to bring to successful completion a monumental task he had begun in Copenhagen in 2009. Nor can one fault his desire to take his last bow before the US and the world with a historic achievement in the backdrop. But his attempt to dare the US Congress in the process introduces an element of uncertainty over the outcome and durability of the exercise. The ghost of Kyoto Protocol refuses to go away.
Obama’s reluctance to refer the Paris Climate Agreement to the Senate is understandable. The Republican majority in the Senate (54-44) is sure to withhold its consent to his ratifying the Agreement.
Most Republicans are avowed climate sceptics and are deniers of the scientific finding that global warming and its adverse effects are man-made.
In recent times, they have made it a point to thwart each one of the President’s climate related measures. Given this adversarial situation, any attempt by him to bypass the Senate and take recourse to his executive powers will not be looked upon with favour by the Senate. Resort to executive powers of ratification by dubbing the Paris Agreement as not being a treaty will not go uncontested in the courts. Ignoring its title, courts would embark upon an interpretation of its provisions. The result is not easy to predict.
Further, a Republican successor may undo what the President does now. Further, the House of Representatives, also under Republican control (247-148), though not enjoying “advice and consent” powers, can flex its muscles by trimming financial appropriations to the Environmental Protection Agency (EPA) as it is doing now.
Moves scuttled
That the above scenario is not imaginary is borne out by happenings in the last two years. For instance, the proposal to issue a Regulation by the EPA to put a freeze on the setting up of new coal-based power plants was turned down by the Senate by a vote of 52 to 46. This Regulation was one of Obama’s big ticket moves to cut down US carbon dioxide emissions. Another EPA Regulation to limit carbon dioxide emissions from existing power plants is the subject of legal challenge in 27 states.
The Executive’s line in the above disputes is that where a parent legislation had been consented to by the Senate, there is no need to approach that body again for issuing a Regulation under that legislation. Since the Regulations issued by the EPA were under approved legislations like the National Environmental Policy Act of 1969 or the Clean Air Act of 1960, they need no approval of the Senate prior to their issue. Though the jury is still out, the same logic is being advanced to ratify the Paris Agreement.
Lastly, the President’s decision to go it alone has a cynical aspect to it. His thinking is that if he could ratify the Agreement before he lays down office and the US becomes a full-fledged Party to it, the membership cannot be withdrawn for a period of four years as laid down in the Agreement. This means that his immediate successor, if he be a Republican, cannot walk out on the Agreement in his first term. After four years, it is felt, it would be highly embarrassing for a big nation like the US to contemplate withdrawal.
The court in play
There is one more player who deserves attention in this drama, namely the US Supreme Court. The majority judges in the five to four decision that stayed the operation of the EPA Regulation to cap emissions from existing power plants were all Republican nominees, the dissenting four being Democratic ones. One member of the majority, Justice Antonin Scalia, passed away in February this year and efforts are afoot to induct a Democratic nominee in his vacancy. This would tilt the balance back in favour of the Democrats and is expected to take care of future challenges before the Court to Democratic climate initiatives. The only snag in this strategy is that the Presidential nominee requires the nod of at least 60 out of the 100 Senators, a support that may not be forthcoming.
How the political fissures and legal challenges in the US would affect its role in the implementation of the Paris Agreement would be watched with interest and concern by developed as well as developing countries in the months to come.
(The writer is former secretary to the Government of India, Ministry of Environment, Forests and Climate Change)