Climate Change Treaties: Bring Your Lawyer

CAP’s Joseph Romm at Salon is doing God’s work (literally), namely, trying to figure out how to get China to reduce its carbon emissions. As they say, read the whole thing. But he makes a crucial legal mistake, which changes things.

Romm argues that the chances of a climate treaty are virtually nonexistent because

for all his talents, Obama can’t move the immovable conservatives in Congress. He can’t deliver the 67 Senate votes needed to approve any international treaty that is likely to come out of the UNFCCC negotiating process in Copenhagen. Yes, Democrats have expanded their majority in the Senate, edging close to the magical 60 votes needed to stop filibusters, and they just may get there on key issues with the help of the few remaining moderate Republicans.

But . . . the conservatives in Congress seem stuck in 1985, unwilling or unable to acknowledge the now painfully obvious reality of global warming or the remarkable advances that have been made in clean technologies. They lined up as a solid bloc against a U.S. climate bill and will surely do so until the last lump of coal can be pried from their submerged hot hands.

All true, except for the law. Romm assumes, as do many, that the Constitution requires 67 votes–or 2/3 of Senators–for a treaty. And why not? Article II, Section 2, Clause 2 of the Constitution says as much.

But over the last six decades, many of the most significant “treaties” have been enacted as “Congressional-Executive Agreements,” which only require simple majorities (and thus, in the Senate, 60 votes). These include NAFTA and American accession to the WTO. Since the Second World War, the United States has ratified over 16,000 agreements; only a little less than a thousand–around 6%–have been “treaties.”

Thus, Obama doesn’t need 67 votes; he only needs 60. That’s hard, but it’s far more doable.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.