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December 15, 2009

The Surprise at Copenhagen

By David Boehmer

It is only logical that President Obama will sign any Copenhagen climate change treaty that may result from this week's negotiations. His worldview demands it. His past statements and ongoing actions presage it.

Obama believes in AGW (anthropogenic or man-made global warming) theory. He believes in "economic and social justice," and that logically leads to "climate justice." He may believe that the U.S. owes a "climate debt" to the rest of the world. What better way to lead the charge than to carry the ultimate banner of the radical left -- wealth redistribution -- under the auspices of the "crises of climate change." AGW even has victims: "climate refugees."

Many doubt Obama's ability to legally commit to a binding treaty and obligate the United States. The possibility, however, prompted Senator Webb to issue a letter to President Obama reminding him not to sign any treaty in Copenhagen. The letter cautioned him to make no make commitments that will not pass the Article II treaty ratification framework under the Constitution requiring a supermajority vote (67 votes) in the Senate. I submit that this thinking is flawed, and Obama has no intent of taking that path.

The president has obligations under U.S. law to "enforce" regulations and "follow the law." This is the foundation he would use to sign the treaty in Copenhagen. In 1996 the
Supreme Court ruled that the EPA must regulate carbon dioxide and other greenhouse gases as pollutants. (Massachusetts et al. v. EPA et al.).

The EPA, stalled by the Bush administration, slowly moved through various required hoops to substantiate that CO2 is in fact a "greenhouse gas" and amongst several others is causing global warming. Once President Obama took office, the EPA was unleashed. On April 17, 2009, the EPA declared CO2 and five other "greenhouse gases" a potential danger. According to their own findings, they relied heavily on the now-suspect IPCC data, much of which is tainted by the "Climategate" files.

This allowed for the Dec. 7, 2009 EPA "Endangerment" notification that CO2 is one of the "dangerous" greenhouse gases to be regulated through the Clean Air Act. The notification declared CO2 to a pollutant, which is pretty stunning all by itself. Setting aside all the arguments for and against anthropogenic global warming (the science is far from settled), we now have a new beast on our hands.

This simple EPA declaration triggered new regulations under the auspices of the Clean Air Act and put the agency in the driver's seat of our carbon-based economy. To have this group of closet radicals at the wheel of our economic engine is scary enough, but it doesn't stop there. Obama will also use the following:

  • The Clean Water Act
    With CO2 now considered a pollutant, atmospheric CO2 pollution and water quality become closely linked. Now here comes the Clean Water Restoration Act (CWRA), steaming full ahead out of the blue. The proposed Senate version looks deceptively like a minor change. In U.S. Supreme Court cases, federal regulatory authority currently extends only to waters that are navigable or perhaps directly connected to navigable waters. The Senate bill would remove the word "navigable." The significance of the dropped word is that any backyard fishpond or birdbath, any swimming pool, or even a piece of low ground that is prone to forming puddles after rains could be subject to new regulations from the EPA and the Army Corps of Engineers.
  • The Endangered Species Act
    Climate change theoretically threatens not only human welfare but also the very existence of numerous other species. If you think the spotted owl or a minnow in California is in danger...look out.
  • The National Environmental Policy Act
    The National Environmental Policy Act (NEPA) seeks to promote "efforts which will prevent or eliminate damage to the environment and biosphere." The NEPA requires the preparation of a "detailed statement" -- commonly known as an Environmental Impact Statement, or EIS -- for proposed legislation and "other major Federal actions significantly affecting the quality of the human environment." Although the courts have interpreted NEPA as predominantly a procedural and informational statute, it nonetheless provides the public and federal decision-makers with important information about the environmental impacts of federal actions, as well as possible alternatives and mitigation measures that could help alleviate those impacts. U.S. courts have squarely held that NEPA requires federal agencies to analyze climate change impacts.

President Obama already has the power to sign a Copenhagen treaty. Most people think of international agreements as treaties. The Constitution under Article II authorizes the president to "make Treaties" with the "Advice and Consent" of the Senate, provided that "two thirds of the Senators present concur." Getting 67 votes in the Senate is a non-starter.

There is another path...and Obama doesn't need any new powers to forge ahead. A "congressional-executive" or "legislative-executive" agreement is made by the president under authority granted by existing statute. This merely requires the approval of a majority in both houses of Congress, rather than a supermajority in the Senate.

Congressional approval can be given either ahead of time, in the form of express authority, or after the fact, in the form of approval of such agreements by majorities in both houses. The chance of a majority vote passing is much more likely than a supermajority vote. These agreements, not treaties, have been used to approve many well-known and binding international arrangements, like the North American Free Trade Agreement (NAFTA) and the World Trade Organization (WTO).

The Obama administration is not bluffing about the "command and control" powers of EPA regulation versus the "market-based" powers of the stalled cap-and-trade bill. They do not wish to extort the passage of legislation with the threat of EPA action. The new international commitments will be based on existing U.S. laws and regulations, and the treaty commitments will then be used to reinforce those same laws and regulations -- even providing the pretext for the urgent need for new ones to enforce the treaty obligations.

Anyone no longer believing Obama's campaign language of "fundamentally changing the United States" underestimates this man. This is a massive power grab of historical and possibly unconstitutional breadth at a breakneck pace. Card check, health care reform, TARP fund misallocations, the stimulus bill pork-barrel spending, cash for clunkers, the $3.4 billion settlement with the Indian tribes, the financial reform bill, additions to the federal work force amidst the hemorrhaging of jobs in the private sector, and now this...we had better wake up and smell what this team is shoveling. And fast.
on "The Surprise at Copenhagen"