Secretary Clinton makes her first environmental law mistake

As Cymie notes, Secretary of State Clinton seems committed to working for a new climate agreement.  And that’s a good thing (although as I have argued elsewhere, it’s really USTR that should take the lead on climate change negotiation.).

But Clinton should stop digging a hole for herself.  She said that the Committee will be involved in negotiating a treaty that the world can agree to and that the “Senate can ratify.”

Hillary–don’t go over to the dark side!

The vast majority of international agreements that the United States has adhered to since World War II have been “executive-legislative agreements,” not treaties.  Both have the full force of law.  So what’s the difference?

Simple: a treaty only needs Senate support, but it needs two-thirds of the Senate.  An executive-legislative agreement, however, only needs a simple majority in both houses (although given the Senate Republicans’ signalling that they will use the filibuster as a matter of course, that means 60, at least for now.).  Not needing those seven votes will be crucial.

Maybe the Senate Democratic majority will insist on any climate change agreement going through as a treaty.  But then the Obama Administration is going to need to see whether they really mean it.  The Cheney Doctrine, i.e. “don’t negotiate against yourself,” is in play here.

Bottom line: a climate change agreement needs only 60 votes, unless it can shown otherwise.  And so far, no one has.

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Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…

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