Changing the Rules:Changing the Rules:

Ditching the Article II Treaty Ditching the Article II Treaty Process for Kyoto IIProcess for Kyoto II

Christopher C. HornerChristopher C. HornerHeartland Climate ConferenceHeartland Climate Conference

NYC, 9NYC, 9thth March 2009 March 2009

“The Perfect Enemy”Talk about a No Spin Zone

• "New enemies therefore have to be identified.New strategies imagined, new weapons devised

• …In searching for a new enemy to unite us, we came up with the idea that pollution, the threat of global warming, water shortages, famine and the like would fit the bill.”

– The Club of Rome

“The First Global Revolution”

1991, page 104

How to fight thatHow to fight thatenemy at the gates?enemy at the gates?

Through climate non-aggression pacts!Through climate non-aggression pacts! Kyoto is a “global treaty” covering a handful of Kyoto is a “global treaty” covering a handful of

industrial titans: Iceland, Belgium, Luxembourg, industrial titans: Iceland, Belgium, Luxembourg, Slovenia and Slovakia…you get the pointSlovenia and Slovakia…you get the point

But not China, India, Mexico, South Korea, But not China, India, Mexico, South Korea, Indonesia, Brazil – all “top 15” emitters, which Indonesia, Brazil – all “top 15” emitters, which would matter, if it were really about emissions – would matter, if it were really about emissions – as well as 150 other free-riding countriesas well as 150 other free-riding countries

None of whomNone of whom are are the pointthe point of Kyoto. of Kyoto. WeWe were the point, the main if not sole target were the point, the main if not sole target

who had to be brought under control by ceding who had to be brought under control by ceding authority over energy-use (economic) decisionsauthority over energy-use (economic) decisions

Then-EU Environment Then-EU Environment Commissioner Margot WallströmCommissioner Margot Wallström

Cry for help: Kyoto “is not about Cry for help: Kyoto “is not about whether scientists agree, it is about whether scientists agree, it is about economy, about leveling the playing economy, about leveling the playing field for big businesses worldwide.”field for big businesses worldwide.”

-- Quoted in -- Quoted in The IndependentThe Independent, March 19, 2000 (since , March 19, 2000 (since “disappeared”, electronically)“disappeared”, electronically)

BTW, that’s a confession we should now BTW, that’s a confession we should now heed: heed: socialism doesn’t work, she socialism doesn’t work, she admittedadmitted

WhoWho killed Kyoto? killed Kyoto?

These factors doomed Kyoto here onceThese factors doomed Kyoto here once

The The fairnessfairness argument argument, combined with , combined with economy and now – aided by economy and now – aided by inter aliainter alia the EU’s failure and memories of the EU’s failure and memories of energy price spikes – will do so againenergy price spikes – will do so again

And now apparently Kyotophiles have a And now apparently Kyotophiles have a problem with the established processproblem with the established process

Ambassador A. Peter BurleighChargé d'affaires, a.i. of the United States Mission to the United NationsStatement on Signing of the Protocol to the UN Framework Convention on Climate Change (Kyoto Protocol)November 12, 1998

USUN PRESS RELEASE #206 (98)November 12, 1998

CHECK TEXT AGAINST DELIVERY

Statement by Ambassador A. Peter Burleigh, Chargé d'affaires, a.i. of the United States Mission to the United Nations, on Signing of the Protocol to the UN Framework Convention on Climate Change (UNFCCC) (Kyoto Protocol), at the United Nations, Nov. 12, 1998.

On behalf of the United States, I have just signed the Kyoto Protocol to the United Nations Framework Convention on Climate Change. By signing the Protocol, the U.S. Government reaffirms its commitment to work with countries from around the world to meet the challenge of global warming. We are guided by the firm belief that signing will serve our environmental, economic, and national security goals.We recognize that further work needs to be done in a number of areas, including participation by key developing countries and defining the rules and guidelines of measures such as international trading and the clean development mechanism. By signing the Protocol, we ensure our ability to continue playing a strong role in completing the work in these important areas.Yesterday in Buenos Aires, Argentina announced that it would voluntarily take on a binding emissions target in the same time frame as the United States and other developed countries. We applaud Argentina's leadership as the first developing nation to make such a pledge. If you have further questions, I would refer you to the delegation in Buenos Aires, headed by Undersecretary of State Stuart Eizenstat.Thank you.* * * * *

  UN Reform     UN Administration and Budget  

Kyoto’s history, reviewedKyoto’s history, reviewed

Unanimous Senate “advice” (unsolicited, not Unanimous Senate “advice” (unsolicited, not wanted) given in July 1997 to wanted) given in July 1997 to notnot agree to Kyoto agree to Kyoto

December 11, 1997, Gore announces agreementDecember 11, 1997, Gore announces agreement November 12, 1998, U.S. signs KyotoNovember 12, 1998, U.S. signs Kyoto Neither President Clinton nor Bush sought Senate Neither President Clinton nor Bush sought Senate

ratification, and no senator has pushed the issue ratification, and no senator has pushed the issue by either seeking such a request or testing the by either seeking such a request or testing the protocol of waiting for “transmittal”protocol of waiting for “transmittal”

Why? Because it will never get 2/3 approvalWhy? Because it will never get 2/3 approval So some people are looking for ways around itSo some people are looking for ways around it

Here’s their constitutional impedimentHere’s their constitutional impediment

Section 2. The President …shall have Section 2. The President …shall have power, by and with the advice and power, by and with the advice and consent of the Senate, to make consent of the Senate, to make treaties, provided two thirds of the treaties, provided two thirds of the Senators present concur;Senators present concur;

Summary of the ProblemSummary of the Problem

U.S. Senate unanimously said “don’t” U.S. Senate unanimously said “don’t” (Art. II, Sec. 2)(Art. II, Sec. 2)

Executive ignored: agreed Executive ignored: agreed (12/11/97), (12/11/97), & & signedsigned (11/12/98)(11/12/98)

Never unsigned, never voted to ratifyNever unsigned, never voted to ratify Nor would this or any Senate ratify these detailsNor would this or any Senate ratify these details So, some see the need to find a way around itSo, some see the need to find a way around it ““Too important to be left to democracy!”Too important to be left to democracy!” ““Kyoto” is now Kyoto” is now thethe vehicle for an entire vehicle for an entire

movementmovement Surely The Constitution’s language is nothingSurely The Constitution’s language is nothing Pressure to legislate before treaty is key factorPressure to legislate before treaty is key factor

Quick ReminderQuick Reminder Clinton-Gore sought to pressure Congress, failedClinton-Gore sought to pressure Congress, failed

UN Green Chief: "The lack of communication between UN Green Chief: "The lack of communication between the Senate and the administration around the time of the Senate and the administration around the time of Kyoto [1997] was an error we cannot allow to be Kyoto [1997] was an error we cannot allow to be repeated. It is necessary to pay very close attention repeated. It is necessary to pay very close attention to what Congress has to say“ to what Congress has to say“ ((Oh. Um, how was that Bush’s fault Oh. Um, how was that Bush’s fault again…?)again…?)

Obama vows to reverse that processObama vows to reverse that process Says will pressure Europeans/UN instead with Says will pressure Europeans/UN instead with

lawlaw UN et al. initially cheered: “US consensus first!”UN et al. initially cheered: “US consensus first!” Nervous about such a bill’s domestic odds now Nervous about such a bill’s domestic odds now

just want just want rhetoricrhetoric or statement of policy first or statement of policy first Key Q on the table: Key Q on the table: which will drive which?which will drive which?

The always reliable Connie The always reliable Connie Hedegaard just weighed inHedegaard just weighed in

Denmark's climate minister kindly concedes that Denmark's climate minister kindly concedes that "it's up to the Americans to decide if they need to "it's up to the Americans to decide if they need to link the two or not“ – a domestic law and treatylink the two or not“ – a domestic law and treaty

Adding, "The president and his administration have Adding, "The president and his administration have adopted a high profile on the issue and I don't want adopted a high profile on the issue and I don't want to speculate on what will happen if (the domestic to speculate on what will happen if (the domestic law) doesn't work.law) doesn't work.

We have to keep up the (international) pressure. We have to keep up the (international) pressure. Because, if we miss this opportunity, who can say if Because, if we miss this opportunity, who can say if there will be another chance in 2010 or 2011?“there will be another chance in 2010 or 2011?“

I can. There won’t. Sky won’t fall. Skepticism risingI can. There won’t. Sky won’t fall. Skepticism rising Which is why today’s topic is what it isWhich is why today’s topic is what it is

See, See, e.g.,e.g., “Just for this one issue…” “Just for this one issue…”

In In Red Hot LiesRed Hot Lies I detail the increasing I detail the increasing number of opinion leaders insisting that number of opinion leaders insisting that – – just for this one issuejust for this one issue – we suspend – we suspend arcane notions of democracy, and arcane notions of democracy, and individual and economic liberties.individual and economic liberties.

Because that’s the only way to impose Because that’s the only way to impose thisthis

But “just this one issue” is energy, But “just this one issue” is energy, meaning economy, national security…meaning economy, national security…

Here’s their suggested end-run…Here’s their suggested end-run…

Former Clinton-Gore State aide Former Clinton-Gore State aide Brookings’ Nigel Purvis, in RFF PaperBrookings’ Nigel Purvis, in RFF Paper

““The United States should classify new international The United States should classify new international treaties to protect the Earth’s climate system as treaties to protect the Earth’s climate system as executive agreements rather than treaties”. And, executive agreements rather than treaties”. And, whywhy??

““The treaty clause has never worked as the framers of The treaty clause has never worked as the framers of the Constitution intended.” Or rather, it’s become the Constitution intended.” Or rather, it’s become inconvenient:inconvenient:

““The treaty process created by the framers of the The treaty process created by the framers of the Constitution requires an exceptional degree of Constitution requires an exceptional degree of national consensus that is no longer reasonable national consensus that is no longer reasonable given the frequency and importance of international given the frequency and importance of international cooperation today.”cooperation today.”

Translation: Translation: that’s so 18that’s so 18thth century, we’ve “moved on”. century, we’ve “moved on”.

““What ‘Constitution’?”What ‘Constitution’?”You say treaty, I say congressional-executive agreementYou say treaty, I say congressional-executive agreement

““Under international law, those two types of Under international law, those two types of instruments are indistinguishable …‘the instruments are indistinguishable …‘the supreme law of the land’…supreme law of the land’…

Very importantly, however, Very importantly, however, the domestic the domestic processes the United States uses to processes the United States uses to negotiate, review, and approve treaties and negotiate, review, and approve treaties and executive agreements are quite differentexecutive agreements are quite different… …

[NB: Translation – [NB: Translation – one’s easierone’s easier]] The United States may deem an international The United States may deem an international

agreement as an ‘executive agreement’ for agreement as an ‘executive agreement’ for purposes of its domestic review, even though purposes of its domestic review, even though the international community may decide to the international community may decide to call the pact a ‘treaty’”. call the pact a ‘treaty’”.

Curious rationale…Curious rationale…or is it or is it rationalizationrationalization??

““We must not cling to preconceived notions of We must not cling to preconceived notions of how our country negotiates and reviews how our country negotiates and reviews international climate agreements”, becauseinternational climate agreements”, because

““The treaty process has harmed the credibility of The treaty process has harmed the credibility of the United States: in the eyes of the world, we are the United States: in the eyes of the world, we are an unreliable treaty partner.”an unreliable treaty partner.”

Specifically why? Because the Senate instructed Specifically why? Because the Senate instructed the executive not to agree to Kyoto and he did the executive not to agree to Kyoto and he did anyway.anyway.

Got that? The Senate provided the parameters, Got that? The Senate provided the parameters, they were ignored, so we’re flakes who need to…they were ignored, so we’re flakes who need to…take the Senate out of the equation. Says Purvis:take the Senate out of the equation. Says Purvis:

““unilateral Presidential leadership may prove unilateral Presidential leadership may prove necessary if Congress refuses to act”necessary if Congress refuses to act”

How would this work?How would this work?

A three-tiered billA three-tiered bill Non-binding “guidance” on pact’s contentNon-binding “guidance” on pact’s content Authority to negotiate, promising a voteAuthority to negotiate, promising a vote No amendment, no filibuster, up-or-down, No amendment, no filibuster, up-or-down,

simple bicameral 50-plus-1 majoritysimple bicameral 50-plus-1 majority Waives Art. II Sec. 2 “consent” because Waives Art. II Sec. 2 “consent” because

jointly agree jointly agree it isn’t really a treatyit isn’t really a treaty (wink) (wink) Lays out successive (deeper) Lays out successive (deeper)

implementationimplementation

Straw MenStraw Men ““But… NAFTA was a cong’l-exec agreement!”But… NAFTA was a cong’l-exec agreement!” However you like NAFTA, However you like NAFTA, this is not NAFTAthis is not NAFTA Not 3 nations agreeing to reduce trade barriersNot 3 nations agreeing to reduce trade barriers It’s 190+ countries, all “indispensible” Parties to It’s 190+ countries, all “indispensible” Parties to

the pact…just not all the pact…just not all coveredcovered (just wealth transferees)(just wealth transferees) With rigged baselines With rigged baselines etc.,etc., targets targets U.S.U.S. energy use energy use This also gets around Kyoto’s This also gets around Kyoto’s MedellinMedellin problem: problem: That is, no escape hatch of Congress refusing to That is, no escape hatch of Congress refusing to

implement: it’s a done deal implement: it’s a done deal ab initioab initio

More PurvisMore Purvis

““the courts would be highly likely to the courts would be highly likely to uphold the agreement” uphold the agreement”

Because it is a “mere historical Because it is a “mere historical tendency” of ours to call such tendency” of ours to call such international entanglements “treaties”international entanglements “treaties”

In fact it appears if Congress/Obama In fact it appears if Congress/Obama opt for this course Purvis could be opt for this course Purvis could be right: we’ve only right: we’ve only oneone sure opportunity sure opportunity to block itto block it

Demand No Kyoto II ‘Fast Track’Demand No Kyoto II ‘Fast Track’ They’re already looking to ram the domestic tax They’re already looking to ram the domestic tax

scheme needed to implement this pact through on scheme needed to implement this pact through on the filibuster-proof budget process the filibuster-proof budget process (similar to a C-E stunt)(similar to a C-E stunt)

Block the request for the Kyoto II “C-E” authorityBlock the request for the Kyoto II “C-E” authority Do not let it get to the Fast Track voteDo not let it get to the Fast Track vote Do not let it get to the courtsDo not let it get to the courts Expose this nowExpose this now If exposure fails, demand filibuster of the requestIf exposure fails, demand filibuster of the request Remember: The Constitution – like a free-market – Remember: The Constitution – like a free-market –

isn’t perfect…isn’t perfect… But it’s a whole lot better than what we have nowBut it’s a whole lot better than what we have now