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Unpublished Paper
The Case for Climate Protection Authority
ExpressO (2009)
  • Nigel Purvis
Abstract

The United States should classify new international agreements to protect the Earth’s climate system as executive agreements rather than as treaties. Unlike treaties, which require the advice and consent of two-thirds of the Senate, executive agreements are entered into either solely by the President based on previously delegated constitutional, treaty, or statutory authorities, or by the President and Congress together pursuant to a new statute. Although limits exist on the types of climate agreements the President could enter into without the approval of Congress, the President’s authorities are broader than many legal scholars and policymakers realize, and could be relied on if Congress fails to craft a strong bipartisan policy.

The President and Congress should handle the most significant climate change agreements—ones that would limit U.S. greenhouse gas emissions, change the terms of international trade, or impose substantial costs on the U.S. economy or treasury—as congressional–executive agreements, which require approval by a simple majority of both houses of Congress. Handling climate agreements as congressional–executive agreements would speed the development of a genuinely bipartisan U.S. climate change foreign policy, improve coordination between the executive and legislative branches, strengthen the hand of U.S. climate negotiators to bring home good agreements, increase the prospects for U.S. participation in those agreements, protect U.S. competitiveness, and spur international climate action.

As a matter of U.S. law, virtually any international agreement the United States rightfully could join as a treaty it could implement as a congressional–executive agreement. Congressional–executive agreements are far from novel; they are, by far, the most common form of international agreement entered into by the United States. Congressional–executive agreements are used by the President and Congress to tackle dozens and dozens of important global issues and, in both legal and policy terms, they are ideally suited for the climate problem.

More specifically, Congress should enact “Climate Protection Authority,” which would define U.S. negotiating objectives in a statute and require the President to submit concluded congressional–executive agreements to Congress for final approval. This approach should apply both to the new global climate change agreement being negotiated in the United Nations by the United States and the rest of the international community and to other future arrangements with a smaller number of major emitting nations.

This paper has six sections. The first section gives some needed policy context by reviewing past, present, and future U.S. climate foreign policy. The second section explains U.S. legal options for authorizing, concluding, and approving international agreements generally. The third section examines situations in which the President and Congress may turn to executive agreements as substitutes for treaties and describes past U.S. practice in this regard. The fourth section applies these general legal principles to climate change and evaluates the usefulness of executive agreements to the climate issue. The fifth section makes the case for creating, by statute, Climate Protection Authority as a new procedural mechanism for defining and implementing U.S. climate foreign policy. And the final section explains why this approach would further the interests of key stakeholders.

Keywords
  • Climate change,
  • treaties,
  • executive agreements,
  • federal statutes,
  • Kyoto
Disciplines
Publication Date
January 16, 2009
Citation Information
Nigel Purvis. "The Case for Climate Protection Authority" ExpressO (2009)
Available at: http://works.bepress.com/nigel_purvis/1/