The Case for a Climate Protection Authority

January 27, 2009

In his inaugural address, President Barack Obama warned that “there are some who question the scale of our ambitions, who suggest that our system cannot tolerate too many big plans.” As the economic crisis deepens, pressures grow on Obama to defer campaign pledges and lighten his agenda with Congress. That is clearly the case when it comes to addressing energy security and climate change. Yet the president’s instincts are right: Postponing major action — however painfully complicated this set of domestic and international negotiations may appear — would be a major mistake.

Obama can move forward now by working with Congress to create a new Climate Protection Authority — a constitutionally sound way of having the president and Congress work together on complex international undertakings.

Former House Majority Leader Dick Gephardt — a man who knows Congress and who favors immediate action on these issues — recently described the task of transforming domestic and international energy policy as “the single most difficult political transaction in the history of mankind.” We must fundamentally reshape how we light and heat our homes, offices and factories and how we power our planes, trains and automobiles. We also must try to simultaneously lower our dependence on oil from Russia, Venezuela and Saudi Arabia; reduce the amount of coal burned in China and India; and increase the amount of rain forest saved in Brazil and Indonesia.

From a policy standpoint, we must do all this quickly. The longer we wait to reduce our energy dependence and stabilize the Earth’s climate, the more we put our economy, security and environment at risk.

From a political standpoint, acting quickly is also essential. Domestically, the president’s public approval and congressional majorities may never be as high. And the fragile consensus that has emerged among environmentalists and many businesses for regulating greenhouse gases could fade if the economy continues to worsen. Internationally, Obama must quickly solidify the global goodwill that greeted the November election. His mettle will be tested in December, when the international community is scheduled to gather in Copenhagen, Denmark, to negotiate a replacement for the 1997 Kyoto Protocol. To reclaim global leadership, the United States must show the world proof that it has the political will to curb greenhouse gases.

A Climate Protection Authority would make these tall tasks easier. Here is how it would work.

First, in consultation with Congress, the president would decide that future climate and energy agreements are to be approved by the United States by statute rather than as treaties. Statutes require a majority in both houses of Congress, whereas treaties require two-thirds of only the Senate. Federal courts have repeatedly upheld the constitutionality of bicameral statutory approval of international pacts. In fact, the United States enters into more international agreements this way than by treaty, including some arms control agreements and environmental pacts and almost all trade deals.

Second, Congress should spell out in cap-and-trade legislation the conditions necessary for U.S. participation in new climate and energy agreements. For example, it should describe the role we envision for China, India and other major developing countries.

Third, cap-and-trade legislation should preapprove new climate and energy agreements that meet these congressional preconditions. Agreements that do should come into effect for the United States either without further congressional review or pursuant to the streamlined approval process Congress has used for most trade agreements.

The arguments for a Climate Protection Authority are strong.

Like trade and arms control agreements, energy and climate pacts are lengthy to negotiate, hard to undo and negotiated in successive “rounds.” And like trade talks, climate negotiations resemble the constant tinkering of domestic legislation far more than the long-lived treaties that the founders envisioned.

The Constitution gives a special role to the House on economic issues. Major energy legislation and negotiation will affect every sector of the economy and should come before the full Congress, not just the Senate.

Other nations would be more likely to meet our terms, for they have come to distrust our treaty-making process. These countries are reluctant to make politically difficult concessions only to see the United States stay out of the agreement in the end. By preapproving agreements that meet enumerated statutory conditions, the path to U.S. participation would become clear and U.S. negotiators would be able to extract needed concessions.

It’s unrealistic to think Congress has the time and attention to take up domestic legislation and an international agreement separately (in whatever order). The right approach is to link them now.

Obama and Congress together have an opportunity to overhaul U.S. energy policy and build a durable global framework for protecting the climate. Given the challenges involved, they would be wise to create a Climate Protection Authority that moves the domestic and international transactions in tandem now.