I agree with Mike Ramsey's recent post saying that U.S. participation in the now-terminated climate agreement was unconstitutional. I'm not commenting here about whether it was effective or fair, but only about whether it was legal and in particular whether the doctrine of congressional acquiescence could make it so. In the 1981 case of Dames & Moore v. Regan, SCOTUS said (emphasis added):
[W]here, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute between our country and another, and where, as here, we can conclude that Congress acquiesced in the President's action, we are not prepared to say that the President lacks the power to settle such claims.
Relying upon congressional acquiescence is kind of a sketchy tactic by a U.S. president, but cases like Dames & Moore suggest it's at least worth mentioning in the present context of the climate change agreement. And it doesn't work. The lack of congressional acquiescence is pretty clear from news articles like this one: Elizabeth Kolbert, Congress Moves to Sabotage the Paris Climate Summit, The New Yorker (December 4, 2015). So I don't see any way that the U.S. involvement in the Paris Accord was legal.
It's worth noting that the Trump administration has restarted the licensing process for the long-planned Yucca Mountain nuclear waste repository which was shelved during the Obama administration. It seems that the U.S. may meet or exceed the goals set by the Paris Accord if the Trump administration succeeds in reviving nuclear power, even if the U.S. is not obliged to do so under the Paris Accord. Here's hoping.
Posted at 11:25 AM