The election of Donald J. Trump to be the next president will soon enable congressional advocates of pro-growth energy policy to go on the offense for the first time in eight years—and they should, for the sake of our Constitution, among other things.
During the Obama presidency, the U.S. House of Representatives passed numerous bills to rein in the Environmental Protection Agency (EPA), protect consumers from regulation-induced energy price increases, and clear the path for job creators to produce, transport, and utilize America’s fossil fuel resources. Those bills could not get past President Obama’s actual or threatened veto.
With the election, the political balance of power has shifted dramatically in favor of pro-growth energy policies The Competitive Enterprise Institute, for one,urges Congress to defund the EPA’s so-called Clean Power Plan, oppose carbon taxes, and amend the Clean Air Act to clarify that Congress in 1970 did not authorize the EPA to legislate national policy on climate change.
But most critical is that the Senate should work with President Trump to repudiate the Paris Agreement on climate change.
In addition to withdrawing formally from the Agreement pursuant to its provisions, Trump should submit the treaty to the Senate for review, for two key reasons. First, it will dramatically reaffirm the Senate’s shared power in treaty making, which was bypassed in the Obama Administration’s endorsement of the accord. Second, it will put the entire U.S. Government on record, not just the Trump Administration, as rejecting the Paris Agreement.
The Paris Agreement, which entered into force on November 4th, is designed to put the U.S. energy sector in an ever-tightening straight jacket. It is a clever strategy to mobilize global political pressure on each Congress and administration, every five years, to pledge increasingly aggressive reductions in carbon dioxide (CO2) emissions—the inescapable byproduct of the carbon-based (fossil) fuels that supply 82 percent of U.S. energy—and to pony up billions dollars annually in “green” foreign aid.
Both our emission-reduction pledges and our alleged duty to subsidize renewable-energy projects overseas will be debated in countless U.N.-sponsored meetings where countries eager to hold back U.S. industry and pick the pockets of U.S. taxpayers will comprise the majority.
In addition to jeopardizing our prosperity and sovereignty, however, the Paris Agreement endangers the constitutional separation of powers.
The Agreement , is clearly a treaty given its potential costs and risks, its “ambition” compared to previous climate treaties, and longstanding U.S. diplomatic practice. Yet President Obama refused to send the Agreement to the Senate for its “advice and consent” pursuant to Article II Sec. 2 of the U.S. Constitution.
Why? Because he knew that even when Democrats were the majority party, there was no chance the Senate would approve a new international climate treaty. The Senate, after all, had refused even to consider similar domestic legislation in 2010, when the Obama Administration was on the ascendant.
Unless forthrightly challenged, Obama’s unilateral adoption of the Paris Agreement could set a perilous precedent whereby the President can evade Senate review of major international commitments simply by calling them non-treaties. Congressional leaders should encourage President Trump to submit the Agreement to the Senate, where it would likely fail to obtain the requisite approval of “two-thirds of the Senators present.”
To be sure, President Trump will have the authority to cancel America’s participation in the Paris Agreement on his own. Under the Constitution, the president needs the Senate’s consent to ratify a treaty, not to withdraw from it.
By the terms of the Paris Agreement, a party may withdraw just from the Agreement alone, a process that takes four years to complete, or it may withdraw as a consequence of withdrawing from the parent treaty, UN Framework Convention on Climate Change, a process that takes one year to complete.
Trump should follow the Paris Agreement’s withdrawal procedures out of respect for the sensitivities of our negotiating partners. However, he should clarify that, as a matter of international law, the United States need not “withdraw” from the Agreement because we never properly joined it.
On the other hand, Senate leaders and President Trump should collaborate to repudiate the Paris Agreement because it is the American people who actually reject it.
Marlo Lewis, Ph.D. is a Senior Fellow at the Competitive Enterprise Institute.