Obama's lame-duck plan to pass cap and trade

Conn Carroll

President Obama's plans to pass economy killing cap and trade regulations may have died in the Senate in 2010. But if Sen. John Kerry, D-Mass., gets his way, they will be resurrected after the presidential election.

At a Senate Foreign Relations Committee hearing Wednesday, Kerry announced that he would not be submitting the United Nations Conventions on the Law of the Sea for a vote before the November election. Instead, Kerry intends to hold a series of hearings before the election, building the case for passage, before pushing the treaty in a lame-duck session. This is the exact same game plan Kerry executed to pass the New START treaty during the 2010 lame duck.

The Obama administration is billing LOST as a must-have national security tool. But the treaty was created in 1982, and the United States Navy has been defending Americans ably ever since even though the U.S. has never ratified it. In fact, when asked by Sen. Chris Coons, D-Del., if national security would be at risk if LOST was rejected, Joint Chiefs of Staff Chairman Martin Dempsey testified flatly, "We will, of course, assert our sovereignty and our ability to navigate. ... Our ability to project force will not deteriorate."

So if the Navy doesn't not need LOST for national security purposes, then why are the Obama and Kerry pushing it so hard?

For the same reason President Bill Clinton did: to make environmentalists happy. When U.S. Secretary of State Warren Christopher submitted LOST to the Senate in 1994, he called it "the strongest comprehensive environmental treaty now in existence or likely to emerge for quite some time." Many environmental activists agree. In fact, they have been waiting to use LOST to force cap and trade policies on the U.S. for years.

Here is how it would work: Much like the contract you signed to get your credit card, LOST contains a binding arbitration clause. Every country that signs LOST submits itself to the jurisdiction of international tribunals for "maritime disputes" with other signatory countries.

When you hear the term "maritime dispute" you might think of something like an argument over shipping lanes. But LOST also obligates signatories to "take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment." And carbon emissions are considered "pollution" according to most sources of international law.

So, if the Senate approves LOST this December, any country that believes itself harmed by global warming could force the U.S. into binding arbitration, most likely in front of the Annex VII Arbitral Tribunal, LOST's default dispute resolution forum.

Any judgment from that tribunal would be final, unappealable, and immediately enforceable in U.S. federal court. In 1982, a similar arbitration body forced Canada to set hourly caps on their sulfur dioxide emissions, causing industry to spend millions on mitigation efforts. A LOST tribunal could set similar caps on U.S. carbon emissions, triggering trillions in economic damage.

Asked Wednesday if LOST was "a backdoor Kyoto protocol," Secretary of State Hillary Clinton replied: "It contains no obligations to implement any particular climate change policies. It doesn't require adherence to any specific emission policies, and we would be glad to present for the record a legal analysis to that effect."

This is classic Clinton dissembling. Although her statement is technically true, it is also completely non-responsive to the binding arbitration threat that LOST poses to the U.S. economy.

Republican senators have been fooled by the Clintons before. Their conservative constituents should make sure they are not fooled again.

Conn Carroll is a senior editorial writer for The Washington Examiner. He can be reached at

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