RFF's Nigel Purvis makes case for executive agreement on domestic, int'l policy

In his new paper, "Paving the way for U.S. Climate Leadership: The Case for Executive Agreements and Climate Protection Authority," Nigel Purvis, a former U.S. climate negotiator and current visiting scholar at Resources for the Future, explains why he believes the United States should negotiate a congressional-executive agreement on climate instead of a treaty. He also urges the United States to jointly negotiate domestic and international agreements. During today's OnPoint, Purvis discusses his paper and gives his take on current climate negotiations.


Monica Trauzzi: Welcome to OnPoint. I'm Monica Trauzzi. Joining me today is Nigel Purvis, a visiting scholar at Resources for the Future and a nonresident scholar at the Brookings Institution. Nigel served as a senior member of the U.S. climate change negotiating team from 1998 to 2002. Nigel, thanks coming on the show.

Nigel Purvis: Thank you for having me.

Monica Trauzzi: Nigel, you just released a new paper called "Paving the Way for U.S. Climate Leadership: The Case for Executive Agreement and Climate Protection Authority." And, in it, you really give a very specific and different way of approaching climate negotiations. And your primary recommendation is that the United States negotiate a congressional executive agreement instead of a treaty. What's the difference between the two? Let's start off with that. And why do you think the executive agreement is going to be more successful?

Nigel Purvis: Sure. The Constitution requires that the president attain the consent of the Senate by a two thirds majority for a ratification of a treaty. In contrast, congressional executive agreements are approved by a simple majority of both houses of Congress. The courts have held that they're equally valid under both domestic and international law and it's really just a choice that the president and the Congress have. The vast majority of international agreements are done as congressional executive agreements, roughly 85 to 90 percent, and it's really owned a small minority, about 6 percent, that are done as treaties. So, I'm recommending applying what is really the norm in a lot of other areas to climate change, because, to date, we've used the treaty form.

Monica Trauzzi: Why have we gone the treaty route with climate change?

Nigel Purvis: You know, I think it's just been a matter of past practice and tradition. We've had a general evolution in our international agreement practice away from treaties towards congressional executive agreements and other types of executive agreements over the last 100 years, really almost 200 years since the first executive agreements were concluded. And it's just been new area by issue area one at a time, where the Congress and the president have concluded that this other form is more suitable. And my recommendation is that the time has come to apply what has now become the norm to climate change and perhaps other environmental agreements as well.

Monica Trauzzi: And how would something like this be perceived on the international level?

Nigel Purvis: You know, I think it's really a domestic question for the Congress and the president and the American people to decide. Internationally, it has the same force of law and the same effect, so other countries have no reason to really care one way or the other. It's just a question of which way we think is best suited to address the interests of the American people.

Monica Trauzzi: You also feel strongly about Climate Protection Authority being enacted. What is that and what would that do for negotiations?

Nigel Purvis: Let me give you a little bit of a reason besides just the change in number about why this new approach is better, because it relates to Climate Protection Authority. Right now, the United States is engaged in two pretty important climate policy challenges. We're negotiating internationally to conclude a new agreement that will replace the Kyoto Protocol. And when that expires in 2012, of course, we didn't participate in Kyoto, but the intention of the Bush administration, and presumably the new president, would be to work to get this new agreement to be something that the U.S. could join. Domestically there's a very active debate on cap and trade and other forms of federal climate legislation. And there's a real risk that these two very significant policy efforts don't align and that we end up having an international agreement that's not consistent with the domestic political realities and domestic legislation where our domestic legislation isn't able to carry forward and set the standard and involve other countries in a compatible and consistent way. What Climate Protection Authority would do would be align these two things, to have them move forward in tandem in a coordinated manner. What I'm recommending is that we take a page out of what the United States does for trade agreements and several other areas where the Congress enacts, early in the negotiating process, a statute that defines the negotiating objectives of the United States, that lays out a process for the Congress and the president work together closely to ensure that the negotiations proceed in a manner that's consistent with those negotiating objectives. And then provides for a simplified review by the Congress, so that we give other countries confidence that if they meet our negotiating demands there's a good chance the U.S. will join the agreement. And currently we're not speaking with one voice. We have about 20 years of climate diplomacy behind us and we have yet to have a genuine, deeply held, bipartisan climate change foreign policy.

Monica Trauzzi: But we are getting there in terms of a domestic agreement on climate policy. If we were able to come to an agreement on the domestic front, wouldn't that send a very strong signal to the international community?

Nigel Purvis: Sure, that'd be terrific. It would be a big improvement over where we are. But imagine that we pass a cap and trade and it defines with the U.S. contribution is going to be for the next period, then we go out and have discussions with China and India and other major emitters and they say to us, "Well, you're already going to do that. You've already enacted that into law." What incentives does that create for them to take strong action and to do more than they're currently doing? So, we need to set a dynamic that has the U.S. acting and leading, because it's the right thing to do, but that also provides an incentive for other countries to move forward.

Monica Trauzzi: There's been a huge focus on the economic implications of climate policy and several reports are out now saying cap and trade, specifically Lieberman-Warner, could be devastating to the economy. How would following your path impact the bottom line?

Nigel Purvis: So, my proposal is intended to be content neutral. It's really up to the president and the Congress with the involvement of the stakeholders and the American people to figure out what the right approach is. I have views on that, but this recommendation really is content neutral. Whatever the right solution is for our domestic political situation, what Climate Protection Authority would do is allow us to then send a clear message to our negotiating partners about what is required for the U.S. to be able to join an international agreement. And that, presumably, if it's done with a concurrent with a cap and trade would be very consistent with whatever level of effort or target level was determined. Whatever competitiveness provisions were included, whatever cost containment provisions were included, those could be a part of Climate Protection Authority. And, in fact, in terms of competitiveness, here's a chance for the Congress, which cares deeply about this issue, to ensure that the next president attaches the same priority and importance to that issue by instructing, in a statute, the president to go negotiate an international agreement, make sure that whatever competitiveness provisions the U.S. adopts as part of its cap-and-trade legislation, are going to be held to be consistent with the WTO, are going to be permissible under a new climate agreement.

Monica Trauzzi: And would something like this then be appealing to key stakeholders who are really looking towards the next climate policy to develop their business strategy?

Nigel Purvis: Well, it's a new idea and we have yet to get reactions, but I'm hoping that there's a favorable response. I think there are reasons why a broad range of interest groups ought to be supportive of this approach. From a business perspective, it provides greater certainty that what the U.S. agrees domestically is also going to be consistent with what the international agreement would require of the United States and, therefore, there will be less of a tendency to have a renegotiation of whatever level of effort or target or policies that we describe domestically. From a competitive concern, there's this opportunity to ensure that the future president goes and negotiates what the Congress is asking for in terms of competitiveness protections. In terms of the environmental community, a simplified review process for a new agreement, such as we do with trade agreements, which are approved in 90 legislative days with a straight up or down vote with no amendment or filibuster or holds. That kind of a simplified approval process, which might go hand-in-hand with this kind of approach provides greater certainty that the U.S. would participate in an international agreement. So, I see reasons for a wide range of stakeholders to feel that this is the process that will help them get the substance that they favor. As I said, the actual approach is content neutral. It's really just a way of ensuring that the president and the Congress are on the same page and that we create the right negotiating dynamic internationally to create incentives for other countries to give us concessions.

Monica Trauzzi: Are you concerned that the 67 votes required for a treaty aren't there, that they don't exist? That we wouldn't be able to get to that number? Is that why we need to go down this route? Is there not enough support in Congress?

Nigel Purvis: Well, the 67 vote requirement is a high hurdle in the Constitution. It's the same bar for removing a president from office. It's one of the highest bars established by the Constitution. So, clearly that's a very difficult thing. And we're seeing how hard it is to get to 60 votes in the Senate, so getting to 67 is presumably even harder. But the point here is not to skirt the Senate role. In fact, the Senate would have a very strong role in defining the terms of climate protection, defining, with the House, the negotiating objectives of the United States as opposed to leaving that solely to the president and the executive branch.

Monica Trauzzi: And if we don't follow this path that you are recommending? What problems do you foresee down the line?

Nigel Purvis: Well, I think there's a good risk that we take a step domestically, but then we haven't created an incentive for other countries to match us and there will be concern that we're not doing enough to meet the environmental challenge, we're not doing enough to protect American business from unfair competition. And I think there's a significant concern that we'll continue to have this gap between what the United States is willing to do domestically politically and the international political pressures. And I think that's not healthy for our standing in the world and U.S. credibility. So, this is an approach that will align the domestic international process. It doesn't say that we shouldn't enact a cap and trade until we've done the negotiations, but what it does show is that once you've enacted a cap and trade you have a very clear path to also becoming a party to an agreement that will obligate other countries to take equitable and fair action.

Monica Trauzzi: Final question. How do you sell an idea like this to Congress, to the next president? Do you think it's going to be a difficult sell?

Nigel Purvis: That is, I think, too early to say.

Monica Trauzzi: Have you been hearing from Congress?

Nigel Purvis: I'm optimistic that this will get a fair hearing. We've got 20 years of the treaty process not serving the American people with kind of a yin and a yang in presidential approaches. And this is a way to get the Congress and the president on the same page. And with three senators who are the leading candidates for presidency, I think they'll understand the importance of working more closely with the Congress in defining a common policy, speaking with one voice internationally, and making sure that international agreements are consistent with domestic political realities. So, I think the arguments are there and I think time will tell whether the reactions from stakeholders are favorable.

Monica Trauzzi: All right. We'll end it right there on that note. Thanks for coming on the show.

Nigel Purvis: Thank you very much for having me.

Monica Trauzzi: This is OnPoint. I'm Monica Trauzzi. Thanks for watching.

[End of Audio]



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