In recent months, most Republicans and a handful of Democrats in the U.S. Congress have vowed to prevent the U.S. from participating in any global climate change agreement reached in Paris next week.
There are two main paths that could lead the U.S. to either withdraw from the expect Paris accord or simply fail to abide by it. But each involves complications that make either unlikely, say veteran analysts from the Center for Climate & Energy Solutions, a nonpartisan organization that in Washington, D.C. promotes policy and action on climate change and related energy issues.
One involves getting rid of President Barack Obama’s centerpiece policy for curbing U.S. greenhouse gas emission: the Clean Power Rules controlling carbon dioxide from fossil-fueled power plants.
Congress is sending just-passed legislation to the White House that would nullify the Clean Power Rules. But Obama has promised to veto the legislation and his congressional opponents lack the necessary votes to override such presidential action.
As a backstop, GOP opponents of action to curtail U.S. greenhouse gas emissions are hoping that a Republican will be elected president in 2016. They expect a Republican president would yank Obama’s regulations on power plant CO2 emissions.
But withdrawing a federal regulation involves a time-consuming and complex legal process, points out Robert Perciasepe, president of the Center for Climate & Energy Solutions. Perciasepe should know – he was second-in-command at the Environmental Protection Agency for five years and oversaw the creation of key federal regulations.
Under a 1946 federal law, the President can’t just strike down an existing regulation in one fell swoop, like by issuing an executive order. First, the Administration has to propose to withdraw the regulation. Then it has to accept and consider comments from the public about the proposal. Later, it can nullify the regulation. This process takes many months to complete. What’s more, the Administration’s withdrawal of a rule can be challenged in court.
A second prong of congressional attack on the Paris deal involves the Senate’s unique role in U.S. foreign policy. Under the U.S. Constitution, the Senate must provide “advice and consent” to any treaty the President enters into.
The Senate gave its advice and consent decades ago to the U.N. Framework Convention on Climate Change. The Paris deal will technically be an extension of that 1992 convention. So no Senate assent to the Paris accord is legally needed if two conditions are met, says Elliot Diringer, executive vice president of the center. One is that the U.S. doesn’t have to take any additional action to meet Obama’s emission reduction pledge of ratcheting its back greenhouse gases to 26–28% below 2005 levels before 2025. The other condition is that the Paris agreement does not contain language that makes it legally binding.
The first condition is already met. The existing Clean Power Rules set the U.S. on course to meet Obama’s emission goal, Diringer points out.
As for the second, the Obama Administration is negotiating hard – to the vexation of the European Union and others — to ensure that the Paris deal does not contain text that makes emission pledges legally binding. Only time will tell if the U.S. prevails by the time the talks end on Dec. 11.
Meanwhile, opponents of the Paris accord in the Senate have introduced legislation that would regard whatever sort of deal comes out of the Paris meeting to have no legal effect in the U.S. unless the Senate votes to give advice and consent to it. Under that scenario, the Republican-controlled Senate would likely sink U.S. participation in the Paris accord. But it remains to be seen if the Senate legislation will gain traction or garner enough support to overcome an almost-certain veto by Obama.
There’s another possibility looming as well, Diringer continues. The President elected in 2016 could also withdraw the U.S. from the Paris deal – just as he or she has the authority to pull the country out of any other international accord. But such a move involves significant risks for U.S. foreign policy, Diringer says. This potential geopolitical fallout could deter the new chief executive from taking such an action.