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Wirth Makes the Case for Executive Agreements

Recent paper informs ministers preparing for Paris climate conference

BC Law Professor David Wirth 

An article on the negotiations leading up to the Paris climate talks of December 2015 caught the eye of the Belgian environment minister, who invited its author, BC Law Professor David Wirth, to speak at the Institute for European Studies in Brussels. Of particular interest to those at the international gathering, which took place last April, was Wirth’s proposal that the United States make its commitments to reduce emissions in a binding executive agreement, which would obviate the need for Senate ratification while bringing the US in line with the European Union.

“The International and Domestic Law of Climate Change: A Binding International Agreement Without the Senate or Congress?”, published in the Harvard Environmental Law Review, points out that binding executive agreements have the sanction of historical precedent. “The executive branch’s conclusion of executive agreements, binding international instruments done without Senate advice and consent,” Wirth writes, “dates to the early years of the Republic.…”

A binding agreement would mean a stronger and more enduring commitment than a non-binding one. A non-binding agreement, Wirth explains, is “not governed by international law, so it’s just a sentiment,” whereas a binding agreement would mean that  “a future President Trump can’t just say, ‘Oh, I changed my mind.…’ He can relieve the US of these obligations, but he would have to notify other parties and formally withdraw. It would give time for national reflection.” Wirth adds that 90 percent of international agreements made by the United States “are done in this executive agreement mode.” That includes the Minimata Convention on the reduction of mercury, which the US signed onto with little fanfare two years ago.

Of course, climate change and the prospect of reducing greenhouse gases evoke more political controversy than reducing mercury. If someone challenged a binding climate agreement in a US court, would it survive? This particular agreement would, says Wirth, because the US greenhouse gas commitments will rely on authority the president has already been given by Congress through the Clean Air Act and other statutes. In other words, in signing a binding international climate agreement, the president would only be agreeing to do things that he can already do under existing law.

Wirth wrote his article knowing that the administration intended to frame its commitments in Paris as non-binding. “The best that can be said about that,” says Wirth, “is that it avoids confrontation with the Senate, but there’s already confrontation with the Senate, so maybe it’s a matter of degree.”

“The EU has offered a binding commitment for its part,” he says, “and has been looking for binding commitments from other states, so there was a lot of interest [among his audience in Brussels] in how that applies to the United States.…Foreign governments have a difficult time understanding our system. They’re like the British ambassador who said, “I’ve lived here ten years, and I still don’t get it.’ ”

(Photograph by Suzi Camarata)