Statement for the Record of the Joint Committee Hearing
on U.S. Environmental Treaties
July 24, 2002
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
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.
ii. News summary of the 2001 meeting at
iii. National Academy of Sciences. Climate Change Science: An Analysis of Some Key Questions (2001)
vv. Testimony of Dr. Sallie Baliunas to the Senate Committee on Environment and Public Works