TCS Daily

'No State Shall...'

By Jon Reisman - June 3, 2003 12:00 AM

Six New England states are usurping the federal treaty power in the name of addressing climate change. Neither the President nor the Congress has been willing to defend their constitutionally delegated powers from this usurpation. The result is bad policy and bad precedent.

The treaty power belongs to the federal executive and legislative branches. Article 1, section 10 states "No State shall enter into any Treaty, Alliance or Confederation... No State shall, without the Consent of Congress...enter into any Agreement or Compact with another State, or with a foreign Power..." In August 2001 six New England governors signed an agreement with five eastern Canadian premiers to implement their own updated version of the Kyoto Protocol. The federal executive has chosen not to protest, and the Congress has not chosen to discuss it, but silence is assent to this usurpation.

The New England Governors/Eastern Canadian Premiers Climate Change Agreement (CCA) is clearly based on the Kyoto Protocol, with carbon dioxide reduction goals of 1990 levels by 2010, 10 percent below that by 2020, and eventually 80 to 90 percent reductions or more. The initial 2010 target requires a 17 percent reduction from current emissions levels.

There is settled precedent supporting the position that the CCA violates the U.S. Constitution. In Holmes v. Jennison, Chief Justice Taney emphasized the broad intent of the framers underlying Section 10:

"As these words ('agreement or compact') could not have been idly or superfluously used by the framers of the Constitution, they cannot be construed to mean the same thing with the word treaty. They evidently mean something more, and were designed to make the prohibition more comprehensive. ... The word 'agreement' does not necessarily import and direct any express stipulation; nor is it necessary that it should be in writing. ...

"And the use of all of these terms, 'treaty,' 'agreement,' 'compact,' show that it was the intention of the framers of the Constitution to use the broadest and most comprehensive terms; and that they anxiously desired to cut off all connection or communication between a State and a foreign power; and we shall fail to execute that evident intention, unless we give to the word 'agreement' its most extended signification; and so apply it as to prohibit every agreement, written or verbal, formal or informal, positive or implied, by the mutual understanding of the parties." 14 Pet. (39 U.S.) 540, 570-572 (1840).

In 2002 the governors and premiers reaffirmed their pledge, and made plans to implement the CCA, although the word "Kyoto" was judiciously absent from the discussion this time. New Hampshire is implementing regulation of carbon dioxide emissions from power plants, and legislation implementing the CCA in Maine is about to be become law. The CCA played a role in bolstering Canadian Prime Minister Jean Chretien's drive to ratify Kyoto in the face of fierce western provincial objections.

Nine New England senators are sponsoring the Clean Power Act, which would regulate carbon dioxide emissions a la Kyoto. Attorneys general from all six New England states are involved in two different suits seeking to force the Bush administration to regulate carbon dioxide and shut down coal electric plants in the Midwest. Clearly New England wants Kyoto or something like it implemented.

The Bush administration has chosen not to challenge the usurpation of the treaty power by New England. Climate change policy is a sensitive political area for the President, and a fault line in the Senate Republican caucus. The executive's reluctance and diffidence is enabling a terrible precedent however. Suppose that Vermont, Washington and Oregon decided to recognize the international criminal court? Aren't war crimes as morally compelling as saving the planet? Or perhaps Idaho, Alaska, British Columbia and Alberta will sign their own energy development agreement in the absence of agreement at the federal levels.

The country needs a debate on Kyoto. Either greenhouse gasses are going to be regulated or they are not. President Clinton wouldn't take Kyoto to a hostile Senate, and President Bush rejected it, but he didn't "unsign" it, as he did for the international criminal court treaty. Although President Bush is pursuing bilateral agreements to transfer clean energy technology to developing countries, climate change policy is in Kyoto limbo. Perhaps the state attorneys general will force a judicial decision, but that seems both unlikely and undesirable. Congress should take the matter up.

Is there a New England senator with enough respect for the Constitution to submit legislation authorizing his or her state's agreement with five foreign powers, thereby forcing a national debate on climate change policy and Kyoto? Senators Jeffords and Leahy of Vermont, Snowe and Collins of Maine, and Chafee and Reed of Rhode Island have all cultivated their "green" credentials on global warming. Senators Kerry of Massachusetts and Lieberman of Connecticut hope to replace President Bush and have criticized him for rejecting Kyoto.

If no environmental advocate will step forward to seek congressional authorization of the CCA, perhaps a Kyoto opponent will rise and submit authorizing legislation in the hopes of its formal defeat, thereby preserving the constitutional principle that the President and Congress make foreign policy, not the states.

Jon Reisman teaches environmental policy at the University of Maine at Machias.

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