National Post (Latest Edition) - - FINANCIAL POST - LAWRENCE SOLOMON

The Trump ad­min­is­tra­tion this week an­nounced it would re­peal the Clean Power Plan, for­mer pres­i­dent Barack Obama’s sig­na­ture global warm­ing pro­gram.

The end of the Clean Power Plan — de­signed to re­duce power plant emis­sions by one-third and es­tab­lish the Obama ad­min­is­tra­tion’s cli­mate bona fides prior to the open­ing of the Paris Cli­mate Agree­ment in 2015 — rep­re­sents more than an­other nail in the cof­fin of the cli­mate change mis­sion. More pro­foundly, it is an­other sign that the global warm­ing tyranny that has been com­pro­mis­ing the rule of law is com­ing to a close.

The Clean Power Plan and other global warm­ing re­forms could have been le­git­i­mate, and Obama wanted them to be. But the global warm­ing bill that he pushed in his first term — the Amer­i­can Clean En­ergy and Se­cu­rity Act of 2009 — couldn’t muster the nec­es­sary votes in Con­gress. Fol­low­ing that fail­ure — and with the pub­lic am­biva­lent at best about global warm­ing rep­re­sent­ing a mean­ing­ful threat — all un­der­stood that fu­ture at­tempts at global warm­ing leg­is­la­tion would go nowhere.

Thwarted by the leg­isla­tive branch of the U. S. govern­ment, Obama then de­cided on one- man rule. Us­ing his ad­min­is­tra­tion’s abil­ity to en­act reg­u­la­tions, which are meant to re­fine not re­place leg­is­la­tion, he bent the law out of shape in or­der to do through ex­ec­u­tive ac­tions and tech­ni­cal reg­u­la­tions what he couldn’t ac­com­plish through leg­is­la­tion. So egre­gious was the over­reach in the Clean Power Plan — the U.S. Supreme Court ul­ti­mately stayed it — that 27 states sued to stop it, and even lib­eral lions such as Har­vard’s Lau­rence Tribe, a con­sti­tu­tional ex­pert and Obama’s men­tor, ar­gued against it.

“I have vig­or­ously de­fended the le­gal­ity of Pres­i­dent Obama’s ex­ec­u­tive ac­tions with re­spect to im­mi­gra­tion, health care, and gay rights, all of course with­out be­ing paid by any­one,” Tribe told The At­lantic. “Be­liev­ing that this time he and his ad­min­is­tra­tion un­for­tu­nately went out­side the bounds of the law, I de­cided to speak up. It wasn’t some­thing I did ea­gerly be­cause I share the ad­min­is­tra­tion’s at­ti­tude to­ward cli­mate change and the ur­gency of mean­ing­ful ac­tion on that front, but I’m not will­ing to keep silent when I see the rule of law threat­ened just be­cause the threat comes from quar­ters with which I am in sym­pa­thy.”

Sweep­ing changes to so­ci­ety — and noth­ing could be more sweep­ing than global warm­ing leg­is­la­tion de­signed to re- en­gi­neer the econ­omy along with ev­ery­one’s life­styles — re­quire an un­am­bigu­ous man­date to be seen as le­git­i­mate. Obama clearly did not have one. Yet, so fiercely did he ad­here to his be­liefs that he chose to rule more as a dic­ta­tor than as a demo­crat in im­pos­ing a global warm­ing agenda.

The Paris cli­mate agree­ment was an­other disin­gen­u­ous ex­er­cise de­signed to skirt the U. S. Con­sti­tu­tion. This “agree­ment” among the sig­na­tory na­tions took the form of a treaty, and a highly con­se­quen­tial one: It pur­ported to bind the U.S. in per­pe­tu­ity to com­pre­hen­sive eco­nomic and en­vi­ron­men­tal changes and also re­quired a sur­ren­der of U. S. sovereignty. But pres­i­dents don’t have the right to uni­lat­er­ally im­pose treaties. Un­der the U. S. Con­sti­tu­tion, treaties must be ap­proved by the Sen­ate, where they are sub­ject to scru­tiny and de­bate. Be­cause Obama knew the Sen­ate would never ap­prove the Paris agree­ment, he did an end run around it and en­tered into this agree­ment through fiat.

In this, Obama had a prece­dent of sorts, al­beit a sorry one. The land­mark Ky­oto Pro­to­col of 1997, which for­mally bound na­tions to the United Na­tions Frame­work Con­ven­tion on Cli­mate Change, was a treaty, not merely an agree­ment. The United States signed Ky­oto in 1998 but it was all for show. Pres­i­dent Bill Clin­ton failed to bring it to the Sen­ate for rat­i­fi­ca­tion, know­ing that do­ing so would ex­pose the U. S. sig­na­ture for the sham it was. The pre­vi­ous year, the Sen­ate unan­i­mously passed a res­o­lu­tion — by a vote of 95 to zero — de­ter­min­ing that “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.”

Yet de­spite the un­am­bigu­ous will of the branch of govern­ment that the Con­sti­tu­tion un­am­bigu­ously charged with the rat­i­fi­ca­tion of treaties, White House ad­min­is­tra­tions from Clin­ton to Obama acted in de­fi­ance of the Sen­ate, as if they had a man­date to act on global warm­ing. The re­sult of th­ese ad­min­is­tra­tions’ ex­trav­a­gant ex­er­cise of fiat pow­ers was far- reach­ing: All the par­ties that de­pended on govern­ment fund­ing — from govern­ment de­part­ments to cor­po­ra­tions to uni­ver­si­ties to sci­en­tific bodies to sci­ence jour­nals to NGOs — soon learned that their fund­ing was de­pen­dent on toe­ing the govern­ment line. Skep­tics were de­mo­nized as de­niers and drummed out of their pro­fes­sions, even sued and threat­ened with le­gal ac­tion for their views. It was a tyranny from the start, and eas­ily done, in that it was ac­com­plished ad­min­is­tra­tively with the stroke of a pen, with­out the la­bo­ri­ous process re­quired to en­act leg­is­la­tion.

But what’s eas­ily done can also be eas­ily un­done. Be­cause Obama didn’t en­list Con­gress in cre­at­ing global warm­ing laws, Trump doesn’t need Con­gress to negate them. This he is do­ing, restor­ing the author­ity of the U.S. Con­sti­tu­tion, and of the Amer­i­can peo­ple.



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