Posturing over climate change

  • 10 July 2017
  • NormanL
Posturing over climate change

In the wake of the President's decision to withdraw from the Paris Climate accord, some Democratic politicians at the state and local level pledged they would commit their localities to upholding the accord's ends, no matter what. While we find this embrace of federalism refreshing on the part of those who once held the idea in contempt, there are constitutional questions surrounding the matter. A new report from the Congressional Research Service addresses those issues and says there are limits to what states can do:

In the context of states’ efforts to enter into legally binding pacts with foreign nations, two clauses in Article I, Section 10 of the Constitution place limits on states’ power. Clause 1 provides that “No State shall enter into any Treaty, Alliance, or Confederation;” and Clause 3 (commonly known as the “Compact Clause”) provides that “No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State, or with a foreign Power[.]” Whereas Clause 1 appears to create an unqualified prohibition on any “Treaty, Alliance, or Confederation,” the Compact Clause conditionally allows states to make “Agreements or Compacts” with foreign nations provided they receive congressional consent.

In practice, the interpretation of Article I, Section 10 is more varied and complex than its text suggests. In an 1840 Supreme Court decision, Holmes v. Jennison, four Justices concluded there is an essential distinction between the types of relationships that are categorically prohibited by Clause 1 versus those that must be approved under the Compact Clause. But the Jennison Court did not reach a majority opinion, and there is no definitive judicial decision or scholarly consensus on how to differentiate between the treaties, alliances, confederations, and compacts addressed in Article I, Section 10.
Still, some rules of interpretation have developed through federal and state practice. The U.S. Department of State— which advises U.S. states and their foreign counterparts on the requirements of Article I, Section 10—has interpreted these constitutional restrictions to only apply to legally binding pacts. Legal research suggests that most states’ pacts with foreign nations—including past declarations and MOUs related to climate change—are not legally binding, and, therefore, not submitted to Congress for approval. The same result will likely occur for certain post-Paris Agreement state activity. For example, the recent California-China MOU expressly states that its provisions are not legally binding, making it unlikely that this MOU would trigger the restrictions of Article I, Section 10.

States can't make legally binding agreements with foreign nations. That seems fairly clear. And it is also clear from the CRS analysis that the states which have entered into agreements with foreign nations on global warming have explicitly made those agreements non-binding.

Which means they are posturing -- because posturing is all the Constitution will allow them to do.