Never Underestimate Your Opponent

Coming to Grips With the Paris Climate Agreement

Master

 Sun [Tzu] talks often about deception and therefore warns against being deceived by the enemy and underestimating their ability. “He who exercises no forethought but makes light of his opponents is sure to be captured by them.” It’s important to properly assess your opponent without prejudice or assumption.

Many skeptics of catastrophic, anthropogenic global warming (CAGW) and therefore opponents of a legally binding treaty to limit carbon dioxide emissions to fight it, including me, breathed a sigh of relief when COP21, the UN Paris climate summit, ended with an agreement that for all appearances seems legally nonbinding. That, we figured, makes it far less dangerous.

This week, Marlo Lewis, at the Competitive Enterprise Institute, gave us a strong reason to reconsider — indeed, to reverse our thinking.

A legally binding agreement would have been, unquestionably, a treaty, requiring two-thirds consent in the Senate, a hurdle it would never top. But that’s precisely why we should have mourned the fact that the Paris agreement isn’t legally binding. That’s given the Obama administration and others the opportunity to insist that it needs no Senate approval. And if Congress and the American people buy that argument, we’re sunk.

Why? Because even though not legally binding, the Paris agreement is, as its supporters have said over and over, “politically binding.” By that they mean that it becomes the moral ground for browbeating policymakers at national, state and local levels into embracing policies necessary to meet the “voluntary commitments” the United States — note that actor, the United States — made in Paris.

As Lewis summarizes:

The treaty’s core purpose is not to impose legal obligations but to establish the multi-decade framework for a global political pressure campaign. The pressure will be directed chiefly at those who oppose EPA’s unlawful Clean Power Plan and other elements of the President’s climate agenda.

Delegates at COP21 emphasized that each country’s commitments were self-chosen, i.e., “nationally determined.” But under the United States' constitutional framework, there’s only one way to conclude that a commitment on the international scene is “nationally determined”: Senate ratification, by at least a two-thirds vote, of a treaty submitted to it by the president.

Put simply, the Paris agreement sneakily pretends that the United States has made a “nationally determined” commitment, and then hopes that nobody here will notice that, according to our own Constitution, the United States has done no such thing.

And so long as nobody notices, Obama and, long after he leaves office, his ideological allies can then pound home the message to Congress, state legislatures, and the American people: “You made this commitment! It’s your moral obligation to live up to it!”

In short, the Paris agreement is far more powerful if it is not a treaty than if it is, precisely because if it isn’t, it doesn’t need Senate ratification.

Lewis argues convincingly, however, that the Paris agreement meets all eight conditions (none of which is that it must be “legally binding”) the State Department has routinely used to define a treaty as distinguished from other international agreements (such as “sole executive agreements”). He also points out that if the president gets to decide unilaterally what is and what isn’t a treaty, he can effectively nullify the constitutional requirement of Senate ratification.

Lewis concludes with the recommendation that Congress, to protect its own constitutional powers from executive capture, and to prevent the serious harm to the American economy that would come from implementation of the “legally nonbinding” but “nationally determined” commitments Obama’s negotiators made in Paris, should adopt a resolution akin to “the Byrd-Hagel Resolutionin July 1997,” which “preemptively nixed any climate agreement, like Kyoto, that would either exempt developing countries from emission-reduction targets and timetables or harm the U.S. economy.” Said resolution should make at least these five points:

(1) The legislative and executive branches are co-equal and treaty making is a shared power. The President does not get to decide unilaterally what is and is not a treaty subject to Senate review.

(2) The Paris agreement, by virtue of its detail, the extent of its commitments, previous national practice, and other factors, is a treaty.

(3) The United States is not a party to a treaty until and unless the Senate ratifies it.

(4) The President cannot unilaterally adopt U.S. emission-reduction targets and timetables as part of an international climate agreement without violating the terms on which the Senate ratified the UN Framework Convention on Climate Change.

(5) The treaty will make executive agencies less accountable to Congress and the American people and more beholden to foreign leaders, U.N. bureaucrats, and unaccountable NGOs. The people’s representatives must act quickly to foil this threat to American self-government.

That’s good advice.

Sun Tzu advises never to underestimate your opponent’s strength. We who celebrated the fact that the Paris agreement is legally nonbinding did exactly that. To borrow language from another theater, “Repent. The end is near!”