Today’s E&E News (subscription required) has an intriguing story — supporting prior musings in this space about the Obama administration seeking an end-run around the Constitution in order to impose a legally binding Kyoto II on you — enitled “Negotiations: A new treaty? An amendment to a protocol? Or an ‘implementing agreement’?” It opens:

What’s in a name? Months of legal wrangling, if that name defines a global pact to clamp down on climate change . . . [and a decision] whether that document will take the shape of a binding contract or a less formal agreement . . . will be a key focus of upcoming global warming talks next week.
‘The question of the form of the agreement, this is really at the heart of the negotiations,’ said Nigel Purvis, president of Climate Advisers and a senior international climate negotiator in the Clinton administration.

Ah, yes, the man who, Planet Gore readers will recall, alternately insists — in the same paper — that the treaty process is now “broken,” and has actually never worked as the Framers intended, and it’s time to work around that pesky notion of Senate ratification by calling Kyoto II not-a-treaty. This is similar to the argument made in a different, pre-Obama administration paper by our “climate envoy” Todd Stern, if with more circumspection about Senate circumvention.

The piece continues:

“The new accord could be any number of things — a treaty, a protocol, an amendment or some combination of options. But ultimately, the debate comes down to this: Will a new global warming pact have the force of law behind it? If so, will only developed nations like America and Japan be bound? What about China and India?
Answers likely won’t be forthcoming until the very last days of the international talks, which will culminate at a U.N. summit in Copenhagen this December. . . . ‘This is front and center on the agenda in Bonn,’ said Angela Anderson, an international policy expert with the Climate Action Network. ‘This is what they have to figure out.’”

Actually, whatever form it takes, the new agreement will be like Kyoto in that it will have no legally binding mechanism of its own, but will only be binding on Parties whose own systems require that. Which essentially means us.

The story then explores problems, such as making Kyoto II an amendment to — as opposed to replacement of — Kyoto. With the U.S. not a Party to Kyoto and unlikely to formalize President Clinton’s (never rescinded) 1998 signature on that treaty — actually, he delegated the task to one Peter Burleigh — this means that various other forms are more likely.

I expect the leading option to be a pact among a far smaller number of countries, with separate wealth-transfer agreements, the former of which should require ratification but may be drafted as some form of executive agreement as Purvis advocates. But this is only a guess.

And, even though the piece concludes by quoting the Union of Concerned Scientists as saying the goal is an agreement that is approved by the Senate, I am certain that this simply reflects a lack of understanding as to the binding nature of Purvis’ end-around, and UCS will come around to seeing the beauty in avoiding the unwinnable fight in favor of what I expect to be a miscalculated political overreach.

In fact, reading between the lines in the story, this does seem to be the path being contemplated by the administration and its pressure group allies.

“The United States has ratified the UNFCCC, and some legal experts believe that a decision from that body would be as strict a legal instrument as a new treaty. But [Elliot Diringer, vice president of international strategies at the Pew Center on Climate Change] said he believes the law is ambiguous, adding, ‘Anything short of a legally binding agreement will be inadequate.’
The Obama administration has already begun to explore the possible options. In a recent submission to the United Nations, officials outlined what they described as an ‘implementing agreement’ that would ‘allow for legally-binding approaches’ to come out of December’s talks in Copenhagen.
Asked to explain the language, a State Department spokesman said the United States is suggesting an agreement that would implement various provisions of the convention. In an e-mail, the spokesman noted that U.S. officials purposely avoided calling the document a protocol, ‘although it shares some features of a protocol, namely that it allows for legally-binding procedures.’
Meanwhile, the United States also bypassed the world ‘treaty,’ the spokesman said, because it is a generic term that lacks specificity.”

Actually, it is a quite specific term, one that it invokes Article II, Section 2 — two-thirds Senate ratification. Hence the need to avoid the use of that “generic” term.

“Jonathan Pershing, President Obama’s deputy climate change envoy at the State Department, told activists in a conference call last month that the description of an ‘implementing agreement’ was ‘intentionally not definitive.’ He noted that it leaves open a number of different possible legal forms.
European leaders, meanwhile, say they are still puzzling over America’s choice of wording and wondering if it’s an attempt to avoid having the U.S. Senate ratify the final text. Climate analysts and Obama administration officials argue that that’s not the intention.
“That’s a separate, purely internal decision that we need to make,” Purvis said.

Well, re-read Purvis’s paper and my analysis of it, and reach your own conclusion about that. In the meantime, keep an eye out for someone at the back door.