Though arguably the most powerful man on the planet, U.S. President Barack Obama heads to Copenhagen later this month wearing handcuffs. The failure of Congress to pass domestic climate legislation has meant the president has had to advance slowly, lest he get ahead of lawmakers in the Capitol. After all according to the Constitution, international treaties must be ratified by 67 "yes" votes in the Senate.
Also still fresh in everybody's mind is the the Senate cast in opposition to US participation in the Kyoto Protocol, though that vote happened more than a decade ago.
But a working paper just posted at the at Columbia University's law school takes a fresh look at the legal basis of the president’s independent power to enter into internationally binding commitments related to climate change, and it finds that the president has broader powers than commonly recognized. It also identifies an intriguing possibility backed by historical and legal precedent.
The president could submit a climate treaty for passage in both houses of Congress by a simple majority, rather than before the Senate alone for passage by a super-majority. In other words, it is possible for Obama to get a global deal ratified by securing a filibuster-proof 60 "yes" votes in the Senate, rather than 67.
"Every vote is blood," Michael Gerrard, executive director of the center, told SolveClimate. "And there's a century's worth of practice that provides the legal basis."
The working paper is a reassuring bit of legal sleuthing. Even if the U.S. passes domestic climate legislation, genuine concern remains that in the polarized politics inside the beltway, a global treaty could still fail to garner 67 votes needed for U.S. ratification. Now, with Obama announcing that he will travel to Copenhagen on the summit's closing day, when deals are customarily finalized, the idea of needing seven fewer votes in the Senate to secure passage of an eventual treaty is a tantalizing prospect that could fortify his ambition.
The center's paper opens a legal discussion with important political implications for the president to consider.
It points to a suite of broad presidential powers to conduct foreign affairs that could loosen his handcuffs as international climate negotiations proceed in Copenhagen and beyond. There's a legal basis for Obama to exercise more global leadership in spite of a laggard Congress.
The Center for Climate Law was established in January to develop legal techniques for combating climate change. It maintains comprehensive charts of climate change law with links to decisions, briefs and memos — one for U.S. case law, and one for law in the rest of the world. It is "universally useful" for environmentalists, industry and government, Gerrard says.
At the same time, the center has an advocacy mission to help train the next generation of lawyers in a rapidly developing field that touches every aspect of the law — corporate and securities law to international trade, intellectual property and human rights law.
Gerrard agreed to direct the Center for Climate Change Law and teach at Columbia Law School after a 30-year career as an environmental lawyer with Arnold and Porter in New York. His Global Climate Change and U.S. Law, one of seven books he has published, is a leading work in its field.
Because his kids are out of college, Gerrard said, he agreed to "a massive voluntary income reduction" to make the move, though he still spends a day a week working for his former firm as a senior counselor. Seven undergraduates volunteer at the center, where the current budget permits Gerrard to have full-time help from only one paid staff member, Hannah Chang, the deputy director, who authored the working paper in time for Copenhagen.