Paving the Way for U.S. Climate Leadership: The Case for Executive Agreements and Climate Protection Authority

The United States should classify new international agreements to protect the Earth’s climate system as executive agreements rather than as treaties. Unlike treaties, which require the advice and consent of two-thirds of the Senate, executive agreements are entered into either solely by the President based on previously delegated constitutional, treaty, or statutory authorities, or by the President and Congress together pursuant to a new statute. The President and Congress should handle the most significant climate change agreements as congressional–executive agreements, which require approval by a simple majority of both houses of Congress. Handling climate agreements as congressional–executive agreements would speed the development of a genuinely bipartisan U.S. climate change foreign policy, improve coordination between the executive and legislative branches, strengthen the hand of U.S. climate negotiators to bring home good agreements, increase the prospects for U.S. participation in those agreements, protect U.S. competitiveness, and spur international climate action. More specifically, Congress should enact "Climate Protection Authority," which would define U.S. negotiating objectives in a statute and require the President to submit concluded congressional–executive agreements to Congress for final approval. This approach should apply both to the new global climate change agreement being negotiated in the United Nations by the United States and the rest of the international community and to other future arrangements with a smaller number of major emitting nations.

How can the United States best ensure that international climate change agreements advance U.S. national interests and thereby enable U.S. participation?

Nigel Purvis, a former senior U.S. climate negotiator and current RFF visiting scholar, asserts that the United States should negotiate climate change executive agreements rather than treaties, in a new RFF discussion paper, "Paving the Way for U.S. Climate Leadership: The Case for Executive Agreements and Climate Protection Authority."

Unlike treaties, which require the advice and consent of two-thirds of the Senate, executive agreements are entered into either solely by the president - based on previously delegated constitutional, treaty, or statutory authorities - or by the president and Congress together, pursuant to a new statute. Although limits exist on the types of climate agreements the president could enter into without the approval of Congress, the president's authorities are broader than many policymakers realize and could be relied on if Congress fails to craft a strong bipartisan policy.

Importantly, Purvis strongly recommends that the president and Congress handle the most significant climate change agreements- ones that would limit U.S. greenhouse gas emissions, change the terms of international trade, or impose substantial costs on the U.S. economy or treasury- as congressional-executive agreements, which require approval by a simple majority of both houses of Congress.

As a matter of U.S. law, Purvis shows that virtually any international agreement the United States rightfully could join as a treaty could also be implemented as a congressional-executive agreement. He shows how handling climate agreements this way would speed the development of a genuinely bipartisan U.S. climate change foreign policy, improve coordination between the executive and legislative branches, strengthen the hand of U.S. climate negotiators to bring home good agreements, increase the prospects for U.S. participation in those agreements, protect U.S. competitiveness, and spur international climate action.

More specifically, Purvis argues that Congress should enact "Climate Protection Authority," which would define U.S. negotiating objectives in a statute and require the president to submit concluded congressional-executive agreements to Congress for final approval.This approach, Purvis recommends, should apply both to the post-Kyoto global climate change agreement now being negotiated in the United Nations by the United States and the rest of the international community, as well as to other future arrangements with a smaller number of major emitting nations, regardless of the substantive climate obligations those agreements may contain.

This discussion paper presents research conducted under a new RFF Climate Policy initiative U.S. Global Leadership on Climate Change.