Obama administration eyes backdoor Kyoto

Christopher Horner Senior Fellow, Competitive Enterprise Institute
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Sunday, as the Son-of-Copenhagen was about to kick off in Cancun to try and salvage a Kyoto II treaty, the Washington Post had yet another item, “Climate change talks face crucial test,” noting that the administration’s various ways of imposing global warming regulations include ignoring the Constitution’s treaty process — a process alternately described by champions of this approach as “broken,” as shown by the fact that Kyoto died in the Senate, or something never intended to apply to instruments as complex as Kyoto, once again proved by virtue of the fact that Kyoto died.

By this line of argument, you can see which document these people are more loyal to.

The following passage in the Post story is noteworthy:

However, U.S. special climate change envoy Todd Stern said the United States is standing firm on its pledge to reduce its emissions 17 percent from 2005 levels by 2020 even without domestic legislation having passed

In recent weeks, key officials have begun to question whether they can pursue a climate deal outside of the U.N. process if it sputters to a halt in Cancun, whether it’s through global groupings such as the Group of 20 or the Major Economies Forum on Energy and Climate, which brings together 17 major emitters for regular meetings.

Jonathan Pershing, Stern’s deputy, told reporters Oct. 6, “The consequences of not having an agreement coming out of Cancun are things that we have to worry about. It doesn’t mean that things may not happen; it may mean that we don’t use this process exclusively as the way to move forward.

As Obama said after the electoral shellacking, “there are other ways to skin that cat.” With more journalists regularly employing the traditionally uncommon phrase that Obama is now “halfway through his term,” the clock to engineer the world the way the Obama administration wants does seem to be ticking.

What Stern and Pershing are hinting at is an “executive agreement” strategy. Among these instruments is something called a “Congressional-executive agreement,” which is a treaty that the political class agrees to not call a treaty. Think NAFTA, where Congress voted to, in effect, waive Article II, Section 2 “advice and consent,” vowing “fast-track” authority: a promise of an up-or-down, no amendment, no filibuster vote on whatever is negotiated and presented. The only opportunity to stop that pact is on the vote whether to grant fast-track.

Except that this is not a trade liberalization regime like NAFTA, but an energy rationing scheme that will provide direct wealth transfers from particular, new assessments on American industry and consumers. The drum-beat for this approach began in early 2008, with numerous publications advocating how the president could conclude bilateral agreements with foreign governments carrying the force of law yet never subjected to Congressional approval. If allowed, a web of these would effectively impose climate policy through the backdoor. I addressed this in some detail here and more fulsomely in an item for the Federalist Society’s Engage here.

Outside advocates are ratcheting up their advocacy of this yet again. We all know that Team Soros and other spokes in the wheel of “Big Left” are pushing an executive order strategy, particularly on the “climate” issue now that cap and trade is dead. Anyone who follows the EPA has seen rules in recent months that will shut down cement kilns and paper plants. Power plants are next. Credit Suisse expects 20% of coal-fired power capacity to be shut by 2015, which is when I suggested this would begin on page 1 of Power Grab. Others say it’s more likely to occur between 2018 and 2020. But announcements of plant closings could come as soon as the end of 2011.

Maybe it is time for someone in Washington to offer some meaningful pushback to this all too regularly voiced disdain for the will of Congress — to say nothing of the American people — as regards CO2 reductions. Is there any point at which rogue negotiations with foreign governments and an international body pose a genuine offense requiring Congressional notice?

As with U.S. states entering “climate” compacts with each other and even foreign governments with not one resolution introduced noting that, under Article I Section 10, Congress’s approval is required, absent Congressional notice, the precedent here begs more of the same and in other contexts.

Each member of Congress — including those Democrats up for re-election in 2012 — should be asked if he or she approves of executive branch officials colluding with other countries and the UN to flout the will of Congress.

Remember, not many Americans knew in much detail what cap and trade was or what was in the Waxman-Markey bill crammed down with 300 pages added to buy votes in the dead of night, hours before the vote. But they saw and were appalled by the circumvention and even abuse of constitutionally prescribed processes. The same was true with the health care stunt.

The American people do care about process, despite Harry Reid, Nancy Pelosi and Robert Gibbs insisting otherwise. They care about the Constitution, sovereignty and their rights. These cute hints from Team Obama that they’ll get their international “climate” agreement, by whatever means necessary, is a great context to have that reaffirmed.

Christopher C. Horner is a senior fellow at the Competitive Enterprise Institute.