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Jordan Candler / December 15, 2020

A Strategy to Handicap the Paris Climate Accord

Sending it to the Senate for rejection would solidify U.S. withdrawal.

Barack Obama, with the help of his secretary of state, John Kerry, made the Paris Climate Accord a staple of his presidency. That accord was portrayed as a do-good framework aimed at lowering the global temperature via a reduction in worldwide carbon emissions. The reality, though, was that it would only negligibly lower temperatures at best, and it also wrongly assumed member countries would follow our lead. (Trusting China to follow through on a commitment is tantamount to believing its “official” COVID death toll or that its coronavirus vaccine is 86% effective.) Oh, and most importantly, the climate agreement didn’t follow our Constitution’s protocols. More on that in a bit.

President Donald Trump, then, was wise to say au revoir to the accord. However, Kerry and his henchmen strategically included in it a contingency plan. And given Trump’s unfathomable win in 2016, that plan may end up proving to be quite useful to the Joe Biden administration — unless Trump takes immediate action to do something he should have done from the get-go.

Article 28 of the Paris Climate Accord stipulates: “1. At any time after three years from the date on which this Agreement has entered into force for a Party, that Party may withdraw from this Agreement by giving written notification to the Depositary. 2. Any such withdrawal shall take effect upon expiry of one year from the date of receipt by the Depositary of the notification of withdrawal, or on such later date as may be specified in the notification of withdrawal.”

In other words, any nation’s exit is willfully delayed by four years. And since the accord became official on November 4, 2016, that means the U.S. exit wasn’t official until November 4, 2020. The election, you’ll recall, was on November 3. As the Competitive Enterprise Institute’s Marlo Lewis warned in 2018, “That means the next president could rejoin the pact with a stroke of the pen, picking up where President Obama left off.”

Pretty sneaky, eh?

Lewis was concerned about Trump’s method of abandoning the accord for this very reason. According to Article II, Section 2 of the Constitution, “[The president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” And as Lewis advised at the time, “To ensure future executives do not try this underhanded maneuver again, Mr. Trump should submit the agreement to the Senate with a recommendation that it be voted down.”

Fortunately, there’s still time — but not much. As reported by The Washington Times, “Presumptive President-elect Joseph R. Biden reiterated his vow Saturday to reenter the Paris climate agreement on the first day of his administration, but that could become a problem if the accord’s foes can ferry it to the Senate first. Conservatives behind the scenes are seeking to foil his plans by persuading President Trump to transmit the 2015 agreement to the Senate for ratification, thus treating the accord as Republicans say it should have been handled all along: as a treaty. … If Mr. Trump transmits the agreement to the Senate after the start of the next Congress on Jan. 3 … then foes of the accord suddenly have a potent new legal argument to block a Biden effort to enter the agreement via executive action.”

Importantly, “Even if Democrats capture both Georgia Senate seats to gain a chamber majority, and swing a few votes from moderate Republicans, nobody thinks they could cobble together enough votes to clear the two-thirds hurdle.” Putting the climate agreement up for a vote wouldn’t just be a fitting tit-for-tat. More to the point, it’s the constitutional thing to do.

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