If not a historic agreement, then a historic step — Obama, China and climate change

President Obama’s announcement of a “historic agreement” between the U.S. and China to reduce greenhouse gas emissions on its face touches upon international law and domestic regulation. In point of fact, the agreement is not itself historic on either of these fronts. Still, what it might lead to down the line — a multilateral climate change treaty — makes the bilateral agreement a first step along a potentially historic path.

An international treaty that bound the U.S. and China to reduce greenhouse gas emissions surely would be historic. It would require the two largest national emitters of greenhouse gases to take ameliorative steps. Moreover, the existence of a ratified treaty might empower the executive branch to take broader steps toward national reductions than it could in the absence of a treaty.

There is no treaty, however. Not only has the Senate yet to ratify any treaty (and indeed, for the reasons I discuss below, it would be unlikely in any event to do so), it does not seem that President Obama has a treaty to present to the Senate for ratification in the first place. That means that it will continue to be the case that there is no binding international law calling upon the U.S. — or China — to reduce its greenhouse gas emissions.

{mosads}Rather, the agreement seems more like a bilateral version of a deal based on successive promises. China agrees to reduce its emissions if the U.S. does first. If the U.S. does so, then China should live up to its promise (though even then it would have no international legal obligation to do so). If the U.S. doesn’t live up to its end of the bargain, then of course it could not even call upon China to live up to its promise.

That begs the question of whether the U.S. is in fact likely to live up to its end of the bargain. Again, insofar as the agreement is not a treaty, the Obama administration has no argument that a duly ratified international accord bolsters its executive power to act. Is the Obama administration (or its successor) better positioned politically to undertake executive action mandating climate change progress or to seek greenhouse gas legislation from Congress? To some degree, yes — one of the reasons some opponents of greenhouse gas legislation have given over the years is that the U.S. should not unilaterally undertake emissions reductions while other big emitters, like China, do nothing. The effectiveness of that argument is now reduced; it is not eliminated, since proponents still can argue that there is nothing binding, and so there still is no assurance that China will in fact do anything even if the U.S. acts first. Also, other arguments against U.S. climate change action — such as that it will inordinately harm the economy at a delicate time, and (for some) that climate change is not happening or not the result of human activity — remain unaffected by the agreement. The Republican reaction (thus far, at least) to the agreement confirms that domestic action is far from assured.

If the agreement makes no headway in terms of domestic law or international law, is it historic? The best answer is that it may prove to be. The real promise of the agreement is that it might convince other countries that the U.S. and China are, after years of recalcitrance, ready to take steps to reduce greenhouse gas emissions. That, in turn, may make it more appetizing for other countries to come to the bargaining table. With multilateral climate change negotiations coming up next year, it may be that the agreement between the U.S. and China provides the basis for a multilateral treaty. If that is true, then a basically toothless nonbinding agreement between the U.S. and China could lay the groundwork for a truly historic international regime — a regime that, if widely enough subscribed, the Senate might have difficulty declining. In that sense, just getting China to come closer to the bargaining table is a historic achievement for President Obama.

Nash is professor of law and the 2014-2015 David J. Bederman Research Professor at Emory University School of Law. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law. Follow him on Twitter @JonathanRNash.