Happy Decennial, Byrd-Hagel


It seems like only yesterday that the U.S. Senate struggled to be heard – pursuant to Article II, Section 2 of the Constitution which requires that treaties be made with their “advice” – by an administration not overly interested in consulting on whether to join a “binding” global warming treaty. In fact, it was ten years ago today that the Senate unanimously instructed the Clinton-Gore administration to not go to Kyoto and agree to that pact, or anything else that met certain proscribed characteristics which happen to describe Kyoto to a Tee.

This became known as the “Byrd-Hagel” resolution, most of whose terms have found their way into subsequent resolutions. In short, nothing has changed on this front in a decade – despite desperate claims that, by so repeating these conditions, the Senate rejected them – except that we’ve learned how George W. Bush helped make the world hate us by agreeing with the Senate.

For the landmark decennial anniversary at least one website suggests not tin or silver but a poem as the appropriate gift in celebration, singling out Haiku as particularly meaningful. As always this inviting format leaves us with so many possibilities; but allow me to suggest:

The Senate Said, “No”

Then came Ken Lay and John Browne

We signed Kyoto

An intervening event, between that July 25 vote and the December 11 concession to Kyoto’s terms came on August 4, 1997, in a meeting in the Oval Office between the President and Vice President of the United States, Ken Lay and (then-) Sir John Browne of (then-) British Petroleum. As internal Enron meeting-prep docs reveal (as I note in my book), the countervailing message was quite simple: Senate “advice notwithstanding, the administration was to go to Kyoto and agree to the proffered treaty which must include a cap-and-trade rationing scheme.

We know who won that dispute (hint: not the Senate), which victory was subsequently affirmed, sloppy reportage notwithstanding (see, e.g., NYT finally correcting years of misreporting to admit the U.S. signed Kyoto). To date, however, I still haven’t found the part in the Constitution about Lay and Browne’s role in the treaty-making process. Maybe I just have an old copy. (Note: this sequence of events betrays the lazy claim that the Senate “rejected Kyoto”; being pre-Kyoto, there was not Kyoto to reject, and the administration also remained unconvinced given how it later agreed to and then signed the pact).

Given that as part of his Live Earth shtick Al Gore issued a 7-point plan including, inter alia, a “demand that my country join an international treaty within the next two years that cuts global warming pollution by 90 per cent in developed countries and by more than half worldwide for the next generation to inherit a healthy earth”, it is timely to recall what “Byrd-Hagel” said.

Resolved, That it is the sense of the Senate that–

(1) the United States should not be a signatory to any protocol to, or other agreement regarding, the United Nations Framework Convention on Climate Change of 1992, at negotiations in Kyoto in December 1997, or thereafter, which would–

(A) mandate new commitments to limit or reduce greenhouse gas emissions for the Annex I Parties, unless the protocol or other agreement also mandates new specific scheduled commitments to limit or reduce greenhouse gas emissions for Developing Country Parties within the same compliance period, or

(B) would result in serious harm to the economy of the United States; and

Then came the little-known second-half of Byrd-Hagel, demanding that no feel-good signatures on any such pact ensue without first spelling out what sort of bill that would stick us with:

(2) any such protocol or other agreement which would require the advice and consent of the Senate to ratification should be accompanied by a detailed explanation of any legislation or regulatory actions that may be required to implement the protocol or other agreement and should also be accompanied by an analysis of the detailed financial costs and other impacts on the economy of the United States which would be incurred by the implementation of the protocol or other agreement.

That is to say, what does this mean? Show your hand, drop the rhetoric about how we’ll all be millionaires from selling windmills to each other and make plain what this is you are seeking to bind us to. Those Senators agitating, a la Gore’s 7-point pledge, that the Bush Administration go do a better job of negotiating than Gore did ought also be reminded of this condition precedent, and at minimum be asked to explain why it no longer applies.

In the meantime, John Dingell is doing his best to satisfy this condition in the face of a hyper-politicized Congress and too-timid White House.


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