Treaty or Not? Debate Over Paris Climate Accord Revives Key Question

Conservatives have found themselves at odds over the Paris climate agreement, disagreeing not only about whether the U.S. should stay in the international accord, but also whether the deal was a formal treaty, which would require the Senate to approve it.

Declaring the Paris deal a treaty would make it more difficult for the United States to stay in the accord since the Republican-controlled chamber is unlikely to sign off on the deal. The debate over the issue has exposed a rift among Trump’s top supporters, as both sides try to sway his actions on the greenhouse gas-cutting accord, first negotiated by his predecessor, Barack Obama.

The staunchest opponents of the Paris accord have argued the agreement, while not legally binding, carries enough weight to count as a treaty requiring a Senate vote. The Obama administration rejected that argument, saying the deal was not a treaty because it has no enforcement mechanism, making U.S. promises optional.

Since Trump took office in January, some original opponents have shifted their stance, saying Trump should renegotiate U.S. commitments and can do so without Senate support because the deal is not a treaty.

The Competitive Enterprise Institute, which employs former Environmental Protection Agency transition team leader Myron Ebell, has published two online videos urging Trump to keep his campaign promise to “cancel” the Paris agreement.

From the other side, nine House Republicans, including Rep. Kevin Cramer (R-N.D.), an early supporter of Trump who has advised him on energy issues, sent the president a letter Thursday recommending the U.S. stay in the Paris agreement but renegotiate its commitments in a way that is better for the U.S. economy.

At a Tuesday Capitol panel on the Paris accord, Chris Horner, senior legal fellow at the conservative Energy and Environment Legal Institute, argued the Paris agreement is a treaty, pointing to the fact that many other countries ratified it as such.

“Why shouldn’t we be more like Europe?” Horner asked. “And Mexico? Why does the U.S. have to be the outliers and be the only Senate not permitted to vote on this?”

Cramer did not directly address the question at Tuesday’s event but afterward said Horner made a good point.

“Chris makes a pretty compelling argument when several of the other countries, especially big countries, have in fact ratified it,” Cramer told reporters after the event. “It looks like a treaty, sounds like a treaty, quacks like a treaty, whatever. It’s a treaty. But clearly, it’s not. And not only is it not a treaty, I just think it’s so loosely knit together as to be far from even really an accord.”

He called the back and forth among Trump’s advisers over the Paris accord “kind of noble,” saying it reflects Trump’s management style.

The conservative Heritage Foundation published a report in March 2016 argued the Paris agreement is a treaty and needed Senate approval.

The report, authored by Steven Groves, who now is chief of staff to U.S. ambassador to the United Nations Nikki Haley, pointed to a State Department procedure that calls on officials to consider several factors that could apply to the Paris deal. The procedure says the department should consider whether “the agreement involves commitments or risks affecting the nation as a whole,” whether it “is intended to affect state laws, and whether it “can be given effect without the enactment of subsequent legislation by the Congress.”