Climate Legislation, the Senate, and International Treaties

Posted by Don Fullerton on Nov 1, 2009

Filed Under (Environmental Policy)

This week the Senate began committee hearings on S-1733, the Kerry-Boxer Bill, with a mark-up expected within the next two weeks.  The authors modeled their Senate bill on the House’s Waxman-Markey Bill that passed the lower chamber in June.  The main component of both bills is a cap-and-trade system to limit greenhouse gas (GHG) emissions in the United States.  Although the Congress has a full agenda, legislative action is critically important at this moment due to the upcoming United Nations Climate Change Conference in Copenhagen, to prove the United States is willing to participate in global GHG mitigation.  (For more information visit:

When the U.S. negotiators sent by President Obama return from Copenhagen, any treaty they sign must be ratified by the Senate with a two-thirds vote, before it could take effect.  This check on the power of the Executive branch is enumerated in Article II, section 2, of the U.S. Constitution, which states the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senate present concur.”  Thus, a treaty must gain the support of 67 senators in order to take effect, a number unrealistically high for an issue as contentious a climate change.

If any agreement in Copenhagen is not signed or not ratified, however, it does not mean that the U.S. cannot be a partner in a global climate solution.  Indeed, the U.S. can act as a de facto treaty member by passing domestic climate change legislation that can be harmonized with international standards.

To enable harmonization with an international treaty, domestic legislation requires three main features.  First, for fairness and competitiveness, the emission reduction targets must be comparable to those of the other industrialized economies such as those in Western Europe.  Second, to reduce the total cost of GHG reductions, it must allow for the sale and purchase of verifiable allowances across international borders.  Third, it must establish a mechanism for technology or monetary transfers to developing countries, lessening their mitigation burden and hopefully bring countries like China and India into the agreement.

The Senate proposal and the House bill demonstrate to the international community that the U.S. is serious about climate change mitigation.  Indeed, the framework in these bills provides a basis for U.S. negotiations in Copenhagen, and furthermore, any agreement at that international conference will influence the final form of the domestic legislation.