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In Brief: Legal Options for U.S. Acceptance of a New Climate Change Agreement

In Brief: Legal Options for U.S. Acceptance of a New Climate Change Agreement

May 2015

By Daniel Bodansky, Sandra Day O’Connor College of Law, Arizona State University

Download the full report (PDF)

U.S. acceptance of the new climate agreement being negotiated under the United Nations Framework Convention on Climate Change (UNFCCC) may or may not require legislative approval, depending on its contents. U.S. law recognizes several routes for entering into international legal agreements. The president would be on relatively firm legal ground accepting a new climate agreement with legal force, without submitting it to the Senate or Congress for approval, to the extent it is procedurally oriented, could be implemented on the basis of existing law, and is aimed at implementing or elaborating the UNFCCC. On the other hand, if the new agreement establishes legally binding emissions limits or new legally binding financial commitments, this would weigh in favor of seeking Senate or congressional approval. However, the exact scope of the president’s legal authority to conclude international agreements is uncertain, and the president’s decision will likely rest also on political and prudential considerations.

The brief is based on the report, Legal Options for U.S. Acceptance of a New Climate Change Agreement, which provides a fuller legal analysis.

Daniel Bodansky
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Legal Options for U.S. Acceptance of a New Climate Change Agreement

Legal Options for U.S. Acceptance of a New Climate Change Agreement

May 2015

By Daniel Bodansky, Sandra Day O’Connor College of Law, Arizona State University

Download the full report (PDF)

The success of ongoing negotiations to establish a new global climate change agreement depends heavily on the agreement’s acceptance by the world’s major economies, including the United States. The new agreement is being negotiated under the United Nations Framework Convention on Climate Change (UNFCCC), a treaty with 195 parties that was ratified by the United States in 1992 with the advice and consent of the U.S. Senate. U.S. acceptance of the new agreement may or may not require legislative approval, depending on its specific contents.

U.S. law recognizes several routes for entering into international agreements. The most commonly known, under Article II of the Constitution, requires advice and consent by two-thirds of the Senate. In practice, however, the United States has accepted the vast majority of the international agreements to which it is a party through other procedures. These include congressional-executive agreements, which are approved by both houses of Congress, and presidential-executive agreements, which are approved solely by the president.

The President would be on relatively firm legal ground accepting a new climate agreement with legal force, without submitting it to the Senate or Congress for approval, to the extent it is procedurally oriented, could be implemented on the basis of existing law, and is aimed at implementing or elaborating the UNFCCC. On the other hand, if the new agreement establishes legally binding emissions limits or new legally binding financial commitments, this would weigh in favor of seeking Senate or congressional approval. However, the exact scope of the President’s legal authority to conclude international agreements is uncertain, and the President’s decision will likely rest also on political and prudential considerations.

Daniel Bodansky
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Climate change: A patchwork of emissions cuts

by Elliot Diringer, Executive Vice President – Published in Nature, September 2013

Climate change: A patchwork of emissions cuts

Download the article as a PDF.

Read Elliot Diringer’s article in Nature on the potential path forward for international climate talks. Below is a brief summary.
 
With the failure in recent years of international attempts to deliver a binding treaty on emissions reductions, individual countries are finding their own ways to address the issue.
 
This patchwork approach could work for climate-change mitigation, C2ES Executive Vice President Elliot Diringer says in Nature, but we need an overarching framework of rules by which progress can be measured.
 
“Much of the real work to stave off climate catastrophe must happen at home,” Diringer writes. There are encouraging signs for reaching a new international agreement, but nations are still struggling with how to build ambition into the model, to ensure that collective action does reduce global emissions overall.
 
Diringer writes that home-made national approaches can be effective for climate-change mitigation if countries agree on rules and build trust.

Published by Nature
Elliot Diringer
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