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Deal or No Deal
Is America Supporting the Global HFC Treaty?

When delegates assembled in Kigali managed to pull off an agreement to limit the use of hydrofluorocarbons (HFCs) earlier this month, environmentalists celebrated it as the latest triumph of top-down climate dealmaking. The agreement bans the use of HFCs, a group of potent greenhouse gases most frequently used in air conditioners and refrigerators, and it does so as an amendment to the 1987 Montreal Protocol, which itself curbed the use of a chlorofluorocarbons (CFCs), a different group of gases used as propellants that were discovered to be wreaking havoc on our planet’s ozone layer.

The Montreal Protocol is one of the precious few success stories for international environmental legislation, but its success is something of an aberration. CFCs were phased out with few difficulties because they had cheap, readily available alternatives. But HFCs were one of those alternatives, and unfortunately for the developing world, there aren’t many cheap replacements for this particular group of gases. And so, while climate advocates pat one another on the back for this latest deal, poor households in India are finding little to celebrate as they’re suddenly faced with a lack of affordable ways to keep themselves or their food cold.

But there’s another wrinkle to this HFC story that’s not getting much media attention: the United States, one of the key backers of the measure, might not be able to sign on the dotted line. The Obama administration used its executive authority to approve this amendment to the 1987 treaty, but as Reuters reports, the White House isn’t sure whether it needs Senate approval (a two-thirds majority it’s sure not to get):

White House spokesman Josh Earnest said it is unclear whether the accord, which is an amendment to the 1987 Montreal Protocol, would need to be ratified by the U.S. Senate. […]

“There has been an ongoing analysis of the agreement to determine precisely what role Congress may have to play in ensuring that the United States can keep the commitments that were made in the context of that agreement,” Earnest told reporters traveling with President Barack Obama at a fundraiser in Los Angeles. […]

He noted that any vote on the agreement would likely take place after Obama leaves office in January. “There will be a very strong case to make to the Senate about why they should approve this agreement, if in fact their approval is necessary,” he said.

Obama has been working hard in his last year to cement his legacy as an environmentally conscious president, but two of the biggest pieces of this late effort—the Paris climate agreement and, just recently, this agreement to phase out HFCs—have relied on the executive branch getting cute with how it defines these deals. John Kerry was quick to note in the run-up to the Paris climate summit last December that there was “definitively not going to be a treaty,” and the Obama administration will be pursuing a similar tack with this HFC deal.

This is the only option Obama has if he wants to bring the U.S. into these international agreements, but this approach simultaneously stretches the limits of the executive branch’s power while also diluting the legal standing of the deals he’s signing us on to. The White House doesn’t expect this issue will be settled before Obama’s tenure ends in January, so our next President can add this issue—one that’s almost surely going to get messy—to his or her to-do list.

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  • Blackbeard

    Nixon: It’s not illegal if the president does it.

    Obama: It’s not a treaty if the president says it’s not.

  • Jim__L

    If it’s not a treaty, the US doesn’t have to abide by it.

    If the US doesn’t abide by it, India shouldn’t have to either.

    • f1b0nacc1

      I suspect that Obama hopes to pull of a trick similar to what he did with Obamacare. In this case, he will hope to get the SCOTUS to declare this ‘executive agreement’ a treaty (and thus supreme law of the land) despite the fact that it will never be submitted to (much less ratified by) the Senate. Particularly if HRC is elected (and thus able to appoint a new justice), he might just get his wish.

  • Kevin

    Did he learn nothing from Wilson?

    If you want Senate approva,l bring prominent opposition members of the Senate to your treaty negotiations.

  • Proud Skeptic

    HFC…That’s a kind of chicken, right?

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