An ambitious global pact among almost 200 nations to cut greenhouse gases may stall in the Senate, where members are likely to be skeptical of supporting an international climate change treaty.
{mosads}The agreement to phase out the use of hydrofluorocarbons (HFCs), powerful greenhouse gases commonly used in refrigeration and air conditioning, was struck on Oct. 15 in Rwanda with the goal of averting a half-degree Celsius of warming this century.
While the Obama administration has celebrated the amendment to the existing Montreal Protocol treaty as a major victory in the fight against climate change, U.S. officials have not yet determined whether they will submit the pact for Senate ratification as a treaty — which requires a two-thirds vote — or assert that it does not need legislative review.
“It’s really undecided yet whether it needs to go,” Environmental Protection Agency (EPA) head Gina McCarthy, who led the U.S. delegation to Rwanda, told Mashable on Tuesday.
“We’ll take a look at it, but that’s going to be up to the legal experts as to whether or not it needs to have that type of ratification process.”
“We will need to examine the content and the form of the agreed amendment, as well as relevant practice, in order to determine the appropriate approval process,” State Department spokeswoman Julia Mason added in a statement.
Senate Foreign Relations Committee Chairman Bob Corker (R-Tenn.), whose panel is responsible for reviewing treaties, said the committee is doing its own analysis to determine whether the pact needs Senate ratification.
“We are taking a close look at the Kigali amendment recognizing that all previous amendments to the Montreal Protocol required Senate advice and consent,” he said in a statement.
The deal has broad support among environmentalists and the industries affected by it, which supporters hope would help with a potential Senate vote.
HFCs are around 10,000 times more powerful than carbon dioxide but stay in the atmosphere for a much shorter time.
The Obama administration received harsh criticism from congressional Republicans when it concluded that last year’s Paris climate agreement would not need ratification.
President Obama made it a priority in the latest negotiations that the emissions reductions for each country would not be binding, thus avoiding the need for Senate approval.
But experts warn that without the Senate, the HFC agreement would likely have no legal force behind it domestically.
“Under the Vienna Convention — the treaty about treaties — when you amend a treaty, you need to treat the amendment just like you would treat a new treaty,” said Mike Wara, an environmental law professor at the Stanford Law School.
“So you’ve got the ratify the amendment,” he added.
Although the EPA may already have the authority to mandate HFC cuts, Wara said, the Montreal Protocol — originally struck to reduce ozone-depleting pollutants — requires that richer nations pay to help poorer nations comply.
“Unless they have a novel theory about why this doesn’t have to be ratified, and how they’re going to pay for it in the absence of ratification and Senate support, it’s potentially a risky move,” Wara said.
Julian Ku, an international law professor at Hofstra University, noted that if the Obama administration does not submit the HFC deal for ratification, it would not be binding.
“The administration can make the agreement without going to the Senate, but if it wants to have domestic effect to change U.S. law, you’d have to have Senate ratification, or you’d have to get a whole new statute,” Ku said.
That means a future president would not have to abide by the terms of the pact.
John Setear, an international law professor at the University of Virginia, said the agreement needs a two-thirds vote in the Senate, which will be very difficult to get, even if Republicans lose the Senate majority in November’s elections.
“Since the Senate detests actions to prevent climate change, that implies that the Senate might well refuse to provide that two-thirds vote, and thus that the U.S. could not join the amendment internationally,” he said.
Obama might argue that because the HFC deal is an amendment to a treaty the Senate previously approved, it does not need separate ratification.
But Wara said that historically, such amendments have gone through Senate review.
“The past practice has been to ratify amendments to the Montreal Protocol,” Wara said.
Setear agreed, saying tradition is nearly uniformly in favor of Senate ratification.
“If the president skipped the Senate with this amendment, then he wouldn’t clearly be violating the Constitution, but he would clearly be violating the general tradition with respect to environmental agreements and the specific tradition with respect to the Montreal Protocol,” he said.
Supporters of the HFC pact are staying out of the discussion for now, choosing instead to defer to the Obama administration.
“We’re waiting for the State Department’s assessment of what’s needed here,” said David Doniger, climate director for the Natural Resources Defense Council (NRDC).
Doniger represented the NRDC in a 2006 court case that concluded that a small tweak to the Montreal Protocol — an international body’s decision to exempt some uses of a chemical from restrictions — could not be enforced domestically without ratification.
But such a specific finding probably won’t mean much for the HFC deal, Doniger said.
“It doesn’t really answer this question,” he said.
The industry is also taking a wait-and-see approach.
“That’s pretty much a call that they would have to make as to whether they would submit it to the Senate for ratification,” said Francis Dietz, spokesman for the Air-Conditioning, Heating and Refrigeration Institute.
But Dietz is hopeful that if the Senate does have a say, industry support for the measure would trump opposition to climate policies.
“The fact that everyone is united on this, industry’s not opposed, the environmental advocates are in favor of it, I think that has to count for something,” he said.