The French hosts of a looming U.N. climate change conference where nearly 200 nations are expected to ink a global accord went into a diplomatic tailspin yesterday after Secretary of State John Kerry suggested countries may not be legally bound to meet their emissions targets.
In comments to the Financial Times, Kerry predicted the Paris agreement next month would not be a full-blown treaty and that there were "not going to be legally binding reduction targets."
A review of Kerry's statements on climate change suggests the remarks are his most direct to date about how the Obama administration hopes to craft the agreement's legal standing. But the position is hardly new. The United States has made its stance clear for nearly a year, and last month, U.S. Special Envoy for Climate Change Todd Stern plainly told a Senate committee, "We are looking for something that is nonbinding."
That didn't stop the diplomatic umbrage. French Foreign Minister Laurent Fabius called Kerry's comments an "unfortunate formulation," while French President François Hollande said, "If the agreement is not legally binding, then there is no agreement because it would mean that it won't be possible to control or verify the commitments that will be taken."
U.S. and European officials noted that Kerry and Fabius spoke later in the afternoon to clear away confusion about the comments.
Republicans in Congress, meanwhile, accused the Obama administration of going behind the Senate's back.
"The president is once again going to try to circumvent Congress as he has done with a number of environmental regulations, going around Congress with reinterpretation of old laws," Sen. John Barrasso (R-Wyo.) said.
Attacks from the left and right
The Obama administration has long advocated for an agreement that is partially legally binding. Under the U.S. vision, as Kerry indicated, countries would not be liable for reaching their stated emissions target by a certain date. For example, the United States would not be beholden to any outside institution for meeting its pledge of cutting emissions 26 to 28 percent below 2005 levels by 2025, nor would China be bound to peak its emissions by 2030 as it promised.
Governments would, however, be subject to a series of legally enforceable accounting and verification measures that would actually prove they were on track to meet their targets.
The distinction is a fine one, but supporters said it helps the Obama administration meet two goals. First, it avoids triggering the need for the U.S. Senate to ratify the measure -- at least by the reading of the State Department. Secondly, it gets around a sticky dance with major emerging economies like China and India, which also do not want to be bound to their pledges.
But Kerry's blunt comments on the delicate subject two weeks before negotiations begin suddenly put Europeans dedicated to seeing a legally binding deal, as well as vulnerable countries that believe their future depends on one, in a tight spot. Moreover, some said, the remarks created an opportunity for opponents on the far left and the far right to attack.
Indeed, climate justice organizations that believe the United States should be paying compensation to poor countries for decades of carbon pollution blasted Kerry.
"Obama's legacy is on the line if he takes us backwards, dismantling decades of established international climate law," Mithika Mwenda, secretary-general of the Pan African Climate Justice Alliance, said in a statement.
Lidy Nacpil, coordinator of the Asian People's Movement on Debt and Development, called on the United States to stop hiding behind a reluctant Congress.
"Secretary Kerry said that when something is a high enough priority for a president, you have a way of getting it done. So President Obama should not continue to use the U.S. Congress as an excuse. And the U.S. Congress should stop turning its back on the obligations of the United States as one of the countries most responsible for climate change," she said.
A 'provocative' demand of the U.S.?
In the United States, activists who work closely with the Obama administration called the battle over "legally binding" a sideshow.
"The key of the Paris agreement is not whether we call it a binding agreement or not," said Jake Schmidt, director of international programs for the Natural Resources Defense Council.
What gives the targets that countries have put forward teeth, he argued, is how deeply they are rooted in domestic national laws and policies.
Paul Bledsoe, a former climate official in the Clinton White House, agreed and said even the language around "legally binding" has become needlessly toxic.
"For U.S. political audiences, the term 'legally binding' immediately conjures up a need for Senate ratification -- even though the U.S. will never agree to language triggering this requirement -- so having E.U. officials repeatedly invoke the term is provocative without being terribly constructive," he said. "The critical point is that emissions targets pledged within any agreement will not be subject to a legal binding standard, period.
"What really matters is legal measures to limit emissions within major countries, which are actually enforceable and subject to penalties, which international pledges will not be," he said. "E.U. climate advocates would be far better off to focus on that."
Senate Republicans, meanwhile, say Obama is trying to build his international climate policy on the same shaky legal foundation he used for his domestic climate agenda.
'Congress will have a say'
"This news, so close to the December negotiations, highlights both the reckless approach that the Obama administration has taken going into Paris and the discord which has ensued. As he remains concerned with nothing but his legacy, the president is attempting to steamroll ahead with an emissions reduction target that he continues to fail to articulate and that the U.S. can neither reasonably achieve nor afford," Sen. James Inhofe (R-Okla.) said in a statement.
Barrasso, chairman of a key subcommittee of the Foreign Relations Committee, said the Senate will find a way to reassert its constitutional right to advice and consent over a Paris deal even though the Obama administration insists the accord won't require it.
"Congress will have a say," he said.
The committee has so far been tight-lipped about its strategy, but Barrasso said this week that Congress may use its power of the purse to seize control of the situation.
He argued that other countries are primarily interested in the $3 billion over four years that Obama has pledged to the Green Climate Fund.
"That is the linchpin of that conference, is American money," Barrasso told ClimateWire. "And it's the president's promise to give money to these developing countries, and I think there are a lot of folks who are hoping to line their pockets personally with that."
But he promised that the Senate would scuttle Obama's "pay to play" strategy for persuading other countries to accept an agreement by making it clear that Congress wouldn't provide the funds.
Squaring the circle
The U.S. pledge of $3 billion to the GCF is not directly tied to the post-2020 agreement that the Paris talks aim to produce. Beginning in 2020, developed countries have promised to leverage an annual $100 billion in public and private revenue to help countries cope with the effects of warming and reduce their own emissions.
Elliot Diringer, executive vice president of the Center for Climate and Energy Solutions, said the European pushback against Kerry might have to do with semantics.
"There is understandably some confusion on the finer legal points, particularly because the term 'treaty' means different things in the international and U.S. context," he said.
While negotiations are ongoing, Diringer said that the end product from Paris will likely have some legal binding elements but not legally binding emissions targets.
"I expect that it will be in a form that would constitute a treaty under international law, but not a treaty as it would be understood in the U.S. that would require the advice and consent of the Senate," he said.
One senior European diplomat said that despite the kerfuffle, there is widespread confidence among negotiators that they can find a solution amenable to everyone. But it won't be easy.
"The problem is to find the middle of the way so the agreement can be considered legally binding, but not a treaty," the diplomat said. "We are trying to square the circle."
Reporter Geoff Koss contributed.