Obama’s Climate Deal Doesn’t Need the Senate

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Photo: Joe Raedle/Getty Images

The Obama administration’s Climate Action Plan is designed to enable the United States to negotiate an international agreement. But wait, treaties have to be ratified by the Senate — with 67 votes, no less — and you couldn’t find 67 Senators to ratify a climate treaty even if it imposed zero burden on America and required all the other countries to deliver tons of gold tribute for us to build a gigantic statue of Ronald Reagan.

It turns out the anti-climate-change community has already thought of this. Coral Davenport has a good report on how the Obama administration, in conjunction with leaders of other countries, plans to craft an accord that does not require Senate confirmation. Cue the Drudge freakout:

But — unlike Obama’s reported plans to enact sweeping immigration reform without Congress — this is not a case of executive overreach. The case for an international treaty is threefold.

1. The problem is incredibly serious and urgent. The latest United Nations report is grim:

The world may already be nearing a temperature at which the loss of the vast ice sheet covering Greenland would become inevitable, the report said. The actual melting would then take centuries, but it would be unstoppable and could result in a sea level rise of 23 feet, with additional increases from other sources like melting Antarctic ice, potentially flooding the world’s major cities.

There is not much room for error here.

2. The Senate can’t act. As noted above. The last time the Senate voted on a treaty, it was a harmless, cuddly treaty on rights for the disabled (a right that already exists under American law) but was rejected.

A possibly harrowing, possibly encouraging Bloomberg News report finds that many Republicans actually want to do something but are too scared:

In Bloomberg BNA interviews with several dozen former senior congressional aides, nongovernmental organizations, lobbyists and others conducted over a period of several months, the sources cited fears of attracting an electoral primary challenger as one of the main reasons many Republicans choose not to speak out.

Given the seriousness and urgency — you can’t un-melt a glacier — the broad way to think about climate politics is that Republicans have ceded the field completely.

The chances of me confirming a treaty on climate, or anything. Photo: Mark Wilson/Getty Images

3. You don’t need a formal treaty to coordinate international action. Here we get into the core of the question. Exactly what level of commitment requires a formal treaty turns out to be a huge gray area. Daniel Bodansky, a law professor and former State Department climate negotiator, has a paper going through the ins, outs, and what-have-yous. The short answer is that political commitments that lack legal force can work as well, or possibly even better, than binding treaties. ("Agreed outcomes that are not adopted as treaties can have political force. Violations of such political agreements may have significant reputational costs, but they do not have any international legal consequences.")

Center for American Progress fellow Peter Ogden, the former White House National Security staff director for climate change and environmental policy, points out in Foreign Affairs that the Copenhagen summit, which failed to produce a binding treaty, “was actually a turning point in international climate talks,” and has produced significant carbon reductions.

The danger in this approach is that a future administration could renege. But that possibility depends, in turn, on how well the regulations actually work. The Obama administration’s climate regulations are modest, but they are also projected to impose low costs on consumers and business. If the regulations actually deliver, encouraging the market to find inexpensive ways to switch to cleaner fuels, and to save money through conservation, then the incentive to revert back to unregulated carbon emissions will be small. Doing so might even impose new costs on businesses that had adjusted to Obama’s regulations.

If the Republican warnings prove true — if compliance costs run beyond projections, if foreign countries refuse to cooperate, if the Earth does not continue to warm, if Americans are shivering in the dark, then there will be opportunities for them to win elections and go back to dumping carbon into the atmosphere for free. The risks on the opposite side dwarf those possibilities.