According to the Times, U.S. negotiators are seeking something other than an official treaty, which by the U.S. Constitution requires approval from two-thirds of the Senate. Instead, they hope to negotiate a “politically binding” agreement, and to have it finished before the conclusion of the United Nations Framework Convention on Climate Change meeting in Paris in December 2015.
The State Department, The Hill reports, pushed back on the Times story Wednesday, with spokeswoman Jen Psaki saying that “it is entirely premature to say whether [the agreement] will or won’t require Senate approval.”
“Our goal is to negotiate a successful and effective global climate agreement that can help address this pressing challenge,” Psaki said in a statement. “Anything that is eventually negotiated and that should go to the Senate will go to the Senate.”
But it’s no secret that the Obama administration has long sought an alternative to the normal treaty process. Given the partisan gridlock of Congress and the significant party split on climate change, the odds of the Senate approving such a treaty are vanishingly small. And the administration has made it clear that it does not want a retread of the 1997 Kyoto Protocol, which the Clinton administration signed but which the Senate wouldn’t ratify.
Since their first appearance at a climate summit in 2009, the Obama administration’s negotiating team has played a major role in steering the process away from a legally binding treaty and toward something that is “politically binding” instead.
At the 2011 United Nations climate change conference in Durban, South Africa, there was contention over what such an agreement should look like. Debates raged over whether a protocol, a legal framework or a “legal outcome” was the most desirable goal. Eventually, the dispute was resolved by describing the goal for the 2015 Paris meeting as “an agreed outcome with legal force under the convention applicable to all parties.”
The U.S. has continued to push for an alternative format to a treaty since then. At last year’s conference, as ClimateWire reported, the negotiation document that was finally arrived upon “eliminated language calling for a ‘legally binding treaty under international law,’ something the European Union and developing countries badly want, but the United States does not.”
While many developing countries and the Europeans would prefer a treaty, they’re also well aware that the political situation in the U.S. is not amenable to that. The big question for the Paris negotiations will be what format the agreement can take, if not a treaty — and whether it will be something enforceable that has a real impact on greenhouse gas emissions.