Forget the hostile Congress – Obama can cut global climate deals on his own terms

While US President Barack Obama has been pushing forward on domestic climate policy with the EPA Clean Power Plan, the conventional wisdom is that he can do very little on the international front, and that any US involvement with a climate treaty would need the approval of the recalcitrant Congress.

Yet this conventional wisdom is simply wrong: Obama can craft an international climate agreement without the consent of the Senate or the House of Representatives.

The popular opinion is that any new legally binding agreement would need to be passed by a two-thirds majority vote in the Senate, a requirement that the Kyoto Protocol failed to achieve. It’s an obstacle widely seen as one of the biggest barriers to establishing an effective climate agreement at the United Nations talks in Paris at the end of this year.

This would seemingly leave Obama with two options: to push for a weak deal to bring to the Senate (although it’s debatable whether any deal could be weak enough to satisfy the Senate’s Republican majority), or to pursue a non-legally-binding deal which would probably be ineffective and seen as illegitimate by the public.

But the real situation is less bleak. As my recent research shows, the need for Senate ratification is largely a myth. There are numerous ways for the United States to be part of an effective climate treaty without involving either side of Congress.

Avoiding the Senate

There are more ways for the United States to join an international treaty than just Senate ratification. It can also enter legal deals through what are called “executive agreements”.

These agreements are surprisingly common – indeed, 94% of international agreements struck by the United States have been made through executive agreements. “Sole-executive agreements” are a form of executive agreement that only require the approval of the president.

The catch is that these sole-executive agreements can only be done on issues that fall within the president’s existing mandate. This includes the foreign powers mandate and authority based on already ratified treaties or existing legislation (such as the Clean Air Act, under which Obama proposes to regulate greenhouse gases from power stations).

An agreement that incorporates legally binding economy-wide emissions targets and/or climate finance commitments would be outside of this mandate and would require Senate ratification (and funds would always need to be appropriated through Congress). However, Obama could use his existing powers to sign off on several other climate policy issues. This could include agreements on research and development, compliance with international targets, procedures and monitoring, and reporting on emissions.

This could be done either by leaving targets out of the legally binding text, or by breaking up the agreement into several different protocols. The latter would be a radical departure from the traditional, interconnected “global deal” approach of the United Nations Framework Convention on Climate Change (UNFCCC). But it might just be better by allowing for both US legal participation and for certain issues to move forward without being held back by the wider negotiations.

A repeat of Kyoto or Copenhagen is not necessary: Obama does not have to be tied to Congress.Author provided

Using existing treaties

Another way that Obama could exercise his climate powers internationally is by co-opting treaties that have already been ratified by the Senate.

One example is the Montreal Protocol, which has successfully limited ozone-depleting chlorofluorocarbons (CFCs) and could now be used to forge an agreement on phasing out their replacement, hydroflurocarbons (HFCs), which are potent greenhouse gases.

Meanwhile, the Chicago Convention on International Civil Aviation could be used to help regulate aviation emissions. Indeed, the International Civil Aviation Organisation has already agreed to move towards a market-based approach in 2016 to address aviation emissions, although there is a long way to go yet. Actions could also be undertaken through the International Maritime Organisation for a similar approach to shipping emissions.

Aviation currently accounts for roughly 2% of global emissions, shipping for about 3% and HFCs for about 1%. All are growing at a significant pace. Action by the United States and other major nations on these issues could therefore tackle a decent slice of global emissions.

This highlights an important way forward beyond the UNFCCC. Deals on specific issues in different negotiating forums could split up the agenda into manageable topics without the cultural baggage, tedious procedures and consensus requirements of the UNFCCC. It would also avoid putting all of our eggs into one basket in chasing a single global climate treaty.

Using the US Clean Air Act

This brings us back to the US Clean Air Act, and specifically to its Section 115 on International Air Pollution, which states that any air pollution caused by the United States that can “reasonably be anticipated to endanger public health or welfare in a foreign country” can be regulated to eliminate the potential danger. But this is only applicable to countries that have given the US reciprocal treatment in terms of that same pollutant.

This wouldn’t be applicable to all other countries, but it could conceivably be applied to major polluters such as China and the European Union. The United States has previously cut a similar deal with Canada over acid rain, with minor tweaks to Canadian legislation.

This kind of bilateral or “minilateral” approach could be a useful complement to the UN climate talks. Countries quite often find it easier to reach ambitious deals when negotiating on the sidelines, rather than by trying to secure consensus between 193 countries.

Naturally, all of these options would involve a good deal of domestic political risk. The Republicans would not react kindly to being bypassed on such important matters. All of these measure would also occur purely through the executive and could be easily abolished by a future president.

But there are really no other options. The US Congress is gridlocked on climate, leaving the president (and some states) as the only avenue for action. The future of the world’s climate will rely largely upon what the United States can do. If it fails to deliver, then Obama can’t simply blame it on a dysfunctional Congress.

The legal options exist for Obama to pursue a strong global deal on his own terms. The real question is whether he has the political guts to take the risks and to forge an international climate legacy for current and future generations.

Luke Kemp has previously received research funding from both an Australian Postgraduate Award and DAAD (German government) research grant.