Expect some clarity soon on America’s future participation in the Paris Agreement on climate. Several cabinet members, including Secretary of State Rex Tillerson and Defense Secretary Jim Mattis, want to stay in, but at a rally in Pennsylvania Saturday, President Trump called Paris a one-sided deal that would shrink the economy by $2.5 trillion over 10 years.
According to reports this week, Mr. Trump is leaning toward withdrawal, but aides warn that he could face trouble in U.S. courts if he fails to uphold the Obama administration’s commitments under Paris. But there is a third approach—submitting the agreement to the Senate for ratification.
Some advocates of staying in argue that America’s moral and political commitment under the agreement is not legally binding because the accord doesn’t have an enforcement mechanism. But neither the North Atlantic Treaty nor the 1992 U.N. Framework Convention on Climate Change has an enforcement provision, and both were submitted to the Senate. Neither of them has a compliance mechanism either—unlike the Paris Agreement, which provides for one in Article 15.
But does an international agreement have legal force at all if the Senate hasn’t ratified it? That’s unclear. During Senate Foreign Relations Committee hearings on the 1992 U.N. climate convention, the administration of George H.W. Bush pledged to submit future climate protocols to the Senate. Senior Senate Republicans might now wish Paris would go away, but letting it stand without Senate consent would create a standard that would have permitted “accepting”—the word President Obama used for joining the Paris Agreement—the U.N. climate convention and the 1997 Kyoto Protocol without Senate consent. A senatorial prerogative written into the Constitution would be lost.
And an administration that has already had three executive orders blocked by the courts should assume it will face litigation over any loosening of emissions regulations. Will judges view Paris as legally binding? No one disputes that under some circumstances, the president can bind the U.S. by a unilateral executive agreement. The conundrum is determining at the outset whether the Paris Agreement falls into that category. Sending it to the Senate would provide an answer; not doing so cannot guarantee that it is not binding.