International Climate Action Without Congress: Does §115 of the Clean Air Act Provide Sufficient Authority?

• Date: 01 July 2014

44 ELR 10562 ENVIRONMENTAL LAW REPORTER 7-2014

A R T I C L E S

International

Climate Action

Without

Congress: Does

§115 of the Clean

Air Act Provide

Suff‌icient

Authority?

by David R. Baake

David R. Baake received his J.D. from Harvard

Law School in May 2014. He will begin a Ford

Foundation Post-Graduate Fellowship at the Natural

Resources Defense Council later this year.

Summary

e ongoing rancor in Congress over climate change

makes it unlikely that the United States will ratify a

treaty as a successor to the Kyoto Protocol. Executive

agreements are often seen as interchangeable with

Article II treaties, and §115 of the Clean Air Act may

provide a needed statutory hook for President Barack

Obama to conclude executive agreements on climate

change. is Article nds that President Obama likely

has authority to bind the United States to greenhouse

gas emission targets under this legislative provision

and that his actions are likely not judicially reviewable.

In December 2015, the parties to the United Nations

Framework Convention on Climate Change

(UNFCCC) will meet in Paris to consider a successor

to the Kyoto Protocol. e success of these negotiations

will depend, in large part, on whether the United States is

willing to commit to binding emissions targets for green-

house gases (GHGs). At present, it is unclear whether the

country will be in a position so to make such a commit-

ment. is uncertainty is chiey due to ongoing gridlock

on Capitol Hill and the opposition of many in the U.S.

Senate to increased environmental regulation.

Given uncertainty about C ongress’ willingness to

approve an international agreement committing the United

States to binding emissions targets, it is worth considering

whether President Barack Obama’s Administration could

conclude such an agreement without Congress.1 is Arti-

cle argues t hat the Administration has su cient authority

to conclude an executive agreement committing the United

States to abate any emissions that endanger the public

health or welfare of any UNFCCC member. Under settled

principles of U.S. executive agreement law, the president is

permitted to conclude an executive agreement on any mat-

ter that could be reached by the treaty power, provided that

such agreement is authorized by statute. Section 115 of the

Clean Air Act (CAA)2 appears to authorize the president to

conclude executive agreements to address t he “[e]ndanger-

ment of public health or welfare in foreign countries from

[air] pollution emitted in the United States.” According ly,

the president likely has sucient legal authority to commit

the United States to binding emissions targets at the Paris

conference, with or without the approval of Congress.

is Article provides background on U.S. executive

agreement law and §115, and considers legal issues related

to the possible implementation of an agreement commit-

ting the United States to binding emissions targets. Part

I oers background on U.S. executive agreement law, to

demonstrate the dominant view that executive agreements

are wholly interchangeable with Article II treaties, and that

the president is permitted to conclude an executive agree-

ment without subsequent congressional action whenever

an existing statute authorizes him to do so. Part II consid-

ers the interpretive principles used in determining whether

a statute delegates executive agreement authority to the

president. at pa rt concludes that statutory authority to

implement an executive agreement is probably insucient

1. See generally Hannah Chang, International Executive Agreements on Climate

Change, 35 C. J. E. L. 337 (2010); Nigel Purvis, e Case for

Climate Protection Authority, 49 V. J. I’ L. 1007 (2009); Kevin Bundy

et al., Yes, He Can: President Obama’s Power to Make an International

Climate Commitment Without Waiting for Congress (Ctr. for Biological

Diversity, Climate L. Inst., Working Paper No. 2, Dec. 2009).

2. Clean Air Act (CAA), 42 U.S.C. §§7401-7671q, at §7415, ELR S. CAA

§§101-618. Summaries of §115’s legislative and litigation histories are pro-

vided in Appendixes A and B, respectively.

Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.