Published on December 22, 2015 | by LawNews
Prof. Julian Ku Quoted on Legality of Paris Climate Change Agreement in Natural Resources Defense Council’s onEarth
Can Congress Stop the Climate Change Deal?
Here are the Senate’s options for trying to muck up the international agreement made in Paris.
By Brian Palmer
Dec. 21, 2015
The State Department’s legal theory is that international agreements lacking new and material legal obligations are not treaties under U.S. law, and therefore need not undergo the Senate’s advice and consent process. Avoid new legal obligations, and you can avoid the Senate.
The heart of the Paris agreement—Article 4, in which the parties commit to limiting greenhouse gas emissions—exemplifies this approach. There’s no mention of “intended nationally determined contributions” (INDCs), the carbon reduction pledges each country submitted before the Paris conference. They’re merely referenced, with each country maintaining the “aim of achieving the objectives” of the INDCs (emphasis added).
“That’s code for ‘not legally binding,’” says Julian Ku, a law professor at Hofstra University . “It’s something we’re trying to do but not promising to do.”
Even with these linguistic tweaks, the Obama administration isn’t home free. The legitimacy of an executive agreement has rarely been challenged in court, so it’s hard to predict how the Supreme Court would settle a dispute. The good news, for President Obama and people who care about climate change, is that judges dislike mediating arguments between the executive and legislative branches of government, particularly when it comes to matters of foreign policy. Professor Ku points to the 1981 case of Dames & Moore v. Regan, in which the court reluctantly let stand President Carter’s backroom deal to free U.S. hostages in Iran in exchange for releasing impounded assets. If the Supreme Court can punt, it probably will.