How The US Could Get Climate Safety At Copenhagen Even Without 67 Votes

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Could President Obama do an end run round the very high bar of persuading 67 Senators (only 60 of whom are Democrats) to ratify a Copenhagen agreement? The Constitutional requirement to “make Treaties” only with the “Advice and Consent” only when “two thirds of the Senators present concur, ” is a higher bar than almost any other nation has saddled itself with. Is there any alternative?

An interesting idea proposed by the Center for Biological Diversity and Yale 360 suggests that President Obama might be able to avoid the 67 vote problem and thus get real reductions at Copenhagen, by using a “legislative-executive” agreement; like that used to sign NAFTA and the WTO.

Of course this would be political suicide. (Although that might be a secondary consideration for this President; given the ginning-up of murderous threats upon his life by a homicidal opposition). Such an agreement would need only a 51 vote majority in both houses of Congress, instead of 67 Senate votes.

President Obama’s recent use of the Executive Order to compel Federal Agencies to get a 30% reduction by 2020 shows that he is not afraid of this kind of end-run around congress.

Then the Clean Air Act would be the tool to reduce carbon dioxide levels to the actual levels needed to avert climate catastrophe.

In October, Robert Stavins suggested using a “Portfolio of Domestic Commitments” like the Clean Air Act rather than more politically difficult “targets and timetables.”  Other experts; including Mary Nichols, chairwoman of the California Air Resources Board – think that the act could be amended to provide a specific global climate focus, perhaps through a new title, as was done for acid rain in 1990.

“There is no reason to abandon a legislative framework that has worked well,” says Nichols.

The Clean Air Act is a mature and flexible law designed to integrate the work of all economic sectors and all levels of government with the legal and regulatory precedent to adopt an executive-branch strategy to complement the next round of legislative efforts. It works, too.

Already, more than half the US population is covered by three regional carbon markets; the Regional Greenhouse Gas Initiative in the Northeast (which begins regulating power plant emissions next month), the Western Climate Initiative, and the Midwest Governors Greenhouse Gas Accord.

With its experience regulating the SOx and NOx market; the EPA could provide federal trading rules; overseeing and coordinating the ongoing development of regional carbon markets. State governments are already working on coordinating these regional trading systems with each others’ and with the European Trading System. Already 39 states measure emissions – the necessary first step.

Now that the EPA has designated greenhouse gas as a danger, 70% of the carbon dioxide emissions in this country could be reduced under requirements for stationary sources that emit more than 25,000 tons of CO2 annually. The original rule to reduce the pollutants that cause acid rain covered sources emitting as little as 100 to 250 tons a year of SOx and NOx, but the EPA believes that going after just the few biggest emitters can reduce CO2 emissions faster.

Several previous moves suggest that this might be the direction the President could take, like using the Executive Order to reduce CO2 30% by 2020 for Federal Agencies, and using the EPA to increase CAFE standards to California waiver levels, and using the EPA to regulate auto CO2 emissions for the first time.

With this administration’s EPA timing its Clean Air Act ruling to the week of the Copenhagen talks, my interpretation was that the ruling was a “stick” to make the “carrot” of signing an agreement more attractive. But this new idea of using an international legislative-executive agreement combined with actually using the certain emissions cap provided by the Clean Air Act is an interesting one.

So the big question would be – how sturdy might such a legislative approach be under the next administration as unconcerned with climate safety as the last one?

Image: Flikr user

Source: Center for Biological Diversity Climate Law Institute(pdf) and e360.Yale

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