Statement
for the Record of the Joint Committee Hearing
on U.S. Environmental
Treaties
July 24, 2002
Jon Reisman
Associate Professor
of Economics and Public Policy
University of Maine
at Machias
I would like to
call the attention of the Committees on Foreign Relations and Environment and
Public Works to a troubling development in New England, where all six New
England Governors (NEG) have entered into an unconstitutional agreement with
the Eastern Canadian Premiers (ECP) to implement the Kyoto Protocol’s caps on
carbon dioxide (CO2) emissions i.
In my view, the
NEG/ECP climate change agreement:
Violates Article 1, Section 10 of the
Constitution: “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…” and
Seeks to implement the Kyoto Protocol
before the U.S. Senate has ratified it, and when, in fact, it has been rejected
explicitly by the President and implicitly by the terms of Senate Resolution
No. 98 by a vote of 95-0.
The
NEG/ECP climate change agreement is a transparent attempt to implement the
Kyoto Protocol, without reference to the complex terms of the Protocol
itself. It calls for reducing
greenhouse gas emissions to 1990 levels by 2010 and to 10% below 1990 levels by
2020. This level of reduction substantially
exceeds the 7% reduction target that the United States would need to meet by
2008-2012 under the Kyoto agreement.
Action
steps under the NEG/ECP climate agreement include:
1) establishing a regional, standardized
greenhouse gas emissions inventory and emissions reduction plan;
2) “educating” the public about the “problem,
causes and solutions” of global warming;
3) decreasing emissions from the electricity and
transportation sectors, and
4) creating a regional registry and emissions
trading mechanism.
The New England Governors are scheduled to travel to Quebec this August
and likely will sign an agreement with the Eastern Canadian Premiers to begin
implementing the unconstitutional pledge they made last year.ii This year, they intend to work out specific
goals and implementation schemes.
There
is settled precedent supporting the position that the NEG/ECP climate agreement
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 addition to these legal concerns,
the policy wisdom of implementing Kyoto may certainly be debated in the face of
the National Academy of Sciences’ recent finding that anthropogenic vs. natural
causality is still clouded by considerable uncertaintyiii.
Correlation is not causation, and the atmospheric models that global warming
advocates rely upon predict that the upper atmosphere will warm first,
something that has not happened and is still unexplained. Furthermore, those same flawed models
predict that the reductions in CO2 envisioned in Kyoto will essentially have no
effect on climatevv.
The
Committee on Foreign Relations should hold a separate inquiry on the purpose
and Constitutional legitimacy of the NEG/ECP climate change agreement. Allowing
six New England states to move forward to implement the Kyoto Protocol would
support the proposition that States are free to ignore Article 1, Section 10,
and are at liberty to negotiate and implement international agreements without
the advice and consent of the United States Senate.
These
concerns are far from academic. Suppose, for example, that Vermont had
disagreed with the Senate’s rejection of the League of Nations, and had
recognized and joined that entity?
Article 1, Section 10 exists precisely to avoid such situations.
If
the Environment and Public Works Committee supports the efforts of New
England’s Governors, it should introduce legislation to implement Kyoto’s caps
on a nationwide basis, and let that legislation be fully debated on the floor
of the Senate. There is absolutely no
defensible environmental or economic rationale for piecemeal regional
implementation of an international agreement that fails, by its terms, to
address future emissions growth by rapidly growing developing nations such as
China and India. Implementing Kyoto targets on a regional basis would lead only
to competitive disadvantage, lost wages and jobs, and larger state budget
deficits at a time of increasing economic uncertainty.
I
hope that the Committees will join me in urging the Administration to notify
the New England Governors that the United States Constitution still applies in
New England, even on environmental matters. We have not, as yet, dispensed with
the formality of having the President negotiate and the Senate ratify international
agreements before we implement them. States are proscribed from making foreign
or interstate agreements. That
Constitutional principle is at risk here.
_______________________
Jon Reisman is an associate professor of economics
and public policy at the University of Maine at Machias, where he teaches a
variety of courses including Environmental Policy and Political Correctness in
American Society. He has a B.A. in economics and environmental studies from
Colby College, an M.A. in economics from Brown University and an M.A. in public
policy and management from the University of Southern Maine.
Reisman worked for Gov. Angus King in 1995 getting rid of federally mandated
car testing in Maine. Upon returning to rural Downeast Maine, he led the effort
opposing the endangered species listing of Atlantic salmon. In 1998 he was the
GOP nominee in Maine's 2nd congressional district.
Reisman pioneered an innovative course offering, "Political Correctness in
American Society" at the University of Maine at Machias. The course is now
offered on the web. Reisman's home page is http://www.umm.maine.edu/faculty/jreisman/jreisman.html
i. Committee on the Environment and the Northeast International Committee on Energy of the Conference of New England Governors and Eastern Canadian Premiers, Climate Change Action Plan 2001.
http://www.scics.gc.ca/pdf/850084011_e.pdf
ii. News summary of the 2001 meeting at http://www.edie.net/news/Archive/4632.cfm
iii. National Academy of Sciences. Climate Change Science: An Analysis of Some Key Questions (2001) http://books.nap.edu/books/0309075742/html/
vv. Testimony of Dr. Sallie Baliunas to the Senate Committee on Environment and Public Works http://www.techcentralstation.com/1051/envirowrapper.jsp?PID=1051-450&CID=1051-031302C