Saturday, January 04, 2014

They keep talking carbon treaties, and I'll keep talking carbon trade agreements

More speculation on a carbon treaty in the news lately, so I'll once again point out that treaties require 67 votes in the Senate while trade agreements require majorities in both houses. Which do you want?

The best-while-feasible outcome may be a treaty without teeth describing goals that maybe could get 67 votes, and then put the real dealmaking in a trade agreement. Or as per the discussion below, blur the distinction between treaties and executive/legislative agreements, and just submit it for majority vote in both houses.

Next-best would be the model the Bushies used with strategic nuclear weapons - reduce our own arsenal but only on the condition that we don't obtain a mutual promise from Russia to do the same. Yes, unilateral concessions are preferable to Republicans over mutual agreements. Maybe simultaneous global unilateral concessions to reduce emissions can happen.

Anyway, a repost from wayback in 2009:

The climate treaty won't be the international agreement with teeth 
Jonathan Zasloff, a friend/law prof/Same Facts blogger, is publishing a proposal in the Northwestern University Law Review suggesting that the US Trade Representative rather than the State Department should take the lead in negotiation a new international climate agreement. (Abstract here, you should also be able to download the full text.) His argument that USTR is better suited than State to coordinate positions of many US governmental agencies makes sense to me. He also argues that the climate agreement could include trade concessions. 
This argument reminds me of one I've made for several years, that trade agreements instead of treaties should provide the real teeth for international climate agreements. The main reason is that treaties need 67 votes in the Senate while trade agreements only need 60 to overcome an initial filibuster. 
I've thought I've been making a lonely argument, but maybe not. I corresponded with Jonathan, and he goes even further. Relevant parts of his email, with his permission to blog them:
I suppose that I disagree with your position because it's not clear to me why climate change agreements need to be submitted as treaties. The Third Restatement of US Foreign Relations Law endorses a pretty broad interchangeability argument.
To be sure, there are those scholars who argue against interchangeability, but it may prove too much. Laurence Tribe has at least suggested quite strongly that all agreements must be submitted as treaties, and so I think he rejects the trade/climate distinction. That could throw out more than 90% of America's international agreements! John Yoo says that something must be submitted as a treaty if it is outside Congress' Article I power, which makes sense, but then he lists a whole lot of things outside that power, which doesn't...
The most recent scholarly statement on the matter is Oona Hathaway's piece in Yale, where she basically says that outside very narrow limitations (not relevant to climate), everything can and should be submitted as an executive-legislative agreement. Her argument is basically policy-based, saying that it makes more sense to do agreements through executive-legislative agreements, and saves the treaty clause from superfluity by these very narrow limitations. 
My very tentative approach is what might be called the Meat Loaf principle, i.e. two out of three ain't bad. The Treaty Clause makes sense because it essentially says that if you're going to ignore the House, you've got to get 2/3 of the Senate; if you're going to override a Presidential veto of a law implementing an international agreement, then you've got to get 2/3 of both Houses. (Interesting and subtle questions of whether an "executive-legislative agreement" can be passed over a Presidential veto, i.e. what's the difference between an executive-legislative agreement and a normal law?). It's a political issue--the way in which an agreement should be submitted depends upon the political context, i.e. whether you can get it through the House or not. 

I think Jonathan is disagreeing with my exclusive reference to trade agreements, and I think he's right that any executive-legislative climate agreement would be constitutional. Doing it as a trade agreement makes political sense, though. 
The other argument for why treaties shouldn't and don't need to be used was in yesterday's New York Times. Johns Yoo and Bolton argue that treaties must be used for a next climate agreement. Anything written by those two johns, particularly by them together, is guaranteed to be both wrong and evil. In particular I don't seen a logical reason why trade agreements under their own argument shouldn't be subject to two-thirds vote. I'm sure Yoo has his nonsensical reason for excluding them, but meshing a climate agreement into a trade agreement would help tie their arguments even further up in knots. 
Here's hoping that Obama listens to the johns and does the opposite. 
(One additional note - this isn't to say there should be no treaty at all. A treaty in addition to some other agreement would be fine, but the teeth should be elsewhere.) 
UPDATE: Just checked, and Jonathan wrote about this issue yesterday.

And if that's not an old-enough post, here's another on the same from my blog toddlerhood in 2005.


Hank Roberts said...

"Jonathan wrote about this issue yesterday" link's not working.

But there's a bonus in the downscroll:

Thomas Lee Elifritz said...

And I'll keep talking the total evacuation of the human race off the planet, because your problems run a lot deeper than carbon emissions. If you think that carbon trading, taxes or trading is going to solve any of your problems you are still deeply delusional.

Thomas Lee Elifritz said...

Sorry, that should have been treaties.

Anonymous said...

"treaties require 67 votes in the Senate"

Which would 67 more than the last time this idiocy went before the Senate.

Have we gotten that much more stupid?

Perhaps - we now sanction the wind farm killing of bats and bald eagles in the name of "saving the environment." Brilliant!


Anonymous said...

Reasons ( besides the benefits of increased CO2 and of mild global warming ) to not do anything about carbon dioxide emissions:

1. Population outside of Africa is projected to slowly decrease within two decades.

2. Economic growth within Africa associated with the population gain will likely not use as much as the average developed nation citizen because of reduced lighting and reduced combined heating/cooling use.

3. Africa population will likely slow if we can allow/foster economic development ( with fossil fuels ) and education.

4. US emissions, which are a likely leading example of developing nations, have been declining per capita for decades and in absolute terms for years ( without a treaty or government action ).

5. Cheap natural gas is abundant worldwide which will reduce CO2 emissions simply by switching from coal.

6. The world is getting older and aside from keeping the house too warm, old farts use less energy.

etc. etc.


Brian said...

Hank - link fixed, thanks.

Eunice - on 67 votes, that's why a toothless treaty may be needed. On climate politics generally, see the prior post. We'll see what happens in 2014 and 2016.

On windfarms, they're working on reducting bat/bird mortality. I think it can be brought down to tolerable levels, especially considering how many bats and birds are killed by climate change.

On your other arguments, there are some hopeful trends, and we should help them (reduce populations on earth, while the sky's the limit in space). Resource use is not expected to decrease soon. Handwaving about some slow trends isn't going to get us to net zero emissions by 2050, which is where we need to be.