Upcoming U.N. Climate Change Conference Highlights the Difficulties the United States Faces in Confronting International Environmental Issues Georgetown Environmental Law Review

Title CardUpcoming U.N. Climate Change Conference Highlights the Difficulties the United States Faces in Confronting International Environmental Issues

By Chelsea Fuentes, Staff Contributor

The upcoming U.N. Climate Change Conference scheduled for November 30 through December 11, 2015 in Paris, France, highlights the difficulties that America faces in entering into formal international agreements, including those involving the environment. Climate change is largely a global issue, because of the nature of carbon emissions to travel freely across borders. The Obama administration recently released the Clean Power Plan to deal with a reduction in domestic carbon emissions from power plants, using EPA rulemaking rather than legislation to ensure the plan would not face direct opposition in Congress.[1] While the administration is pushing for an international agreement that contains binding provisions, the administration must again do so in a way that prevents Congress from putting a stop to the agreement.[2]

“Because of the current political climate, it is unlikely that any treaty could be ratified, so Secretary Kerry must ensure that any agreement reached during the Climate Change Conference is not considered a treaty under American law.”

In an interview with The Financial Times, John Kerry, Secretary of State, stated that any agreement reached during the upcoming climate conference in Paris was “definitely not going to be a treaty” and would not include legally binding reductions, such as those reached in Kyoto. These statements alarmed French officials, who insist that any agreement coming from the conference must be legally binding.[3] State Department officials were quick to correct any misunderstanding, and state that the U.S.’s continued position is “pressing for an agreement that contains both legally binding and non-legally binding provisions.”[4] However, this exchange highlights the discord between American law and politics, and international solutions to climate change. In order for a treaty to be in force in the United States, it must be ratified by two-thirds of the Senate. Because of the current political climate, it is unlikely that any treaty could be ratified, so Secretary Kerry must ensure that any agreement reached during the Climate Change Conference is not considered a treaty under American law.

“Perhaps this public support by American businesses coupled with the implementation of the Clean Power Plan domestically will signal the United States’ willingness and ability to directly confront the issue of climate change, in creative ways that don’t involve legislation.”

In order to avoid the need for ratification, American climate negotiators have been attempting to devise a binding deal that instead focuses on naming and shaming countries into curbing their emissions.[5] Instead of creating a new treaty, it has been surmised that the participating countries may be trying to blend previously established, legally binding conditions with new voluntary pledges, in order to avoid a new treaty.[6] The United States’ failure to ratify the Kyoto Protocol, first established in 1997, has led some countries, including Canada, to conclude that Kyoto’s goals were unworkable because the U.S. was not a party to the agreement.[7] Poor, developing countries often feel the effects of climate change via flood and drought, but are powerless to do much to mitigate these effects on their own. These countries, such as Tanzania, urge that the U.S. ratify an agreement, hoping this will trigger action against climate change around the globe.[8] Is it time for the United States to find a mechanism to enter into enforceable climate agreements without a traditional ratification process? Historically, American companies have opposed the United States ratifying a treaty dealing with climate change.[9] However, recently many American companies, including giants such as Google, GM, and Coca Cola recently pledged support for a global climate change agreement in Paris.[10] Perhaps this public support by American businesses coupled with the implementation of the Clean Power Plan domestically will signal the United States’ willingness and ability to directly confront the issue of climate change, in creative ways that don’t involve legislation. Although it is too soon to tell, when the final position of the Clean Power Plan is known (as litigation is underway, and we approach the implementation deadlines), we may have a clearer vision of the United States’ ability to adhere to limitations on carbon output, and operate a carbon exchange. With a clearer vision of what the United States can do domestically, it will be easier for the United States to come to an agreement with other nations, and perhaps finally serve as a global leader in the reduction of carbon emissions.

[1] Coral Davenport, Obama’s Strategy on Climate Change, Part of Global Deal, Is Revealed, N.Y. Times (March 31, 2015), http://www.nytimes.com/2015/04/01/us/obama-to-offer-major-blueprint-on-climate-change.html?_r=0.

[2] Aurelien Breeden, France Says Climate Talks Must Produce Binding Deal, N.Y. Times (Nov. 12, 2015), http://www.nytimes.com/2015/11/13/world/europe/any-paris-climate-deal-must-be-legally-binding-french-leader-says.html?ref=earth&_r=0

[3] Id.

[4] Id.

[5] Coral Davenport, Obama Pursuing Climate Accord in Lieu of Treaty, N.Y. Times (Aug. 26, 2014), http://www.nytimes.com/2014/08/27/us/politics/obama-pursuing-climate-accord-in-lieu-of-treaty.html?rref=collection%2Fnewseventcollection%2Fun-climate-change-conference&action=click&contentCollection=earth&region=stream&module=stream_unit&version=latest&contentPlacement=8&pgtype=collection

[6] Id.

[7] Kyoto Protocol Fast Facts, CNN (March 31, 2015), http://www.cnn.com/2013/07/26/world/kyoto-protocol-fast-facts/

[8] Davenport, supra note 5

[9] John H. Cushman Jr., Intense Lobbying Against Global Warming Treaty, N.Y. Times (Dec. 7, 1997), http://www.nytimes.com/1997/12/07/us/intense-lobbying-against-global-warming-treaty.html?pagewanted=all (powerful business interests, including car manufacturers, corn farmers, steel mills, and oil refineries openly opposed a climate change treaty in Kyoto, arguing that cutbacks in emissions would harm American economic interests).

[10] Mairead McArdle, 81 Major Corporations—Including Google, Facebook, Coca Cola, General Motors—Sign WH Pledge to Back Global Climate Change Deal, CNSNews.com (Oct. 20, 2015), http://www.cnsnews.com/news/article/mairead-mcardle/81-companies-including-google-coca-cola-apple-join-obamas-fight-against.

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