an interview yesterday with the Financial Times Secretary of State John Kerry brought this interesting question to the surface in surprisingly frank terms. Though it's no surprise, Kerry was quite clear: the US will block any legally binding language that makes the Paris agreement sound like a treaty, even though the EU and many, many other participating parties would like to see such binding language. Why is this such a deal-breaker for the US? Because Republican senators are poised to challenge any such agreement, and insist on their constitutional prerogative to approve or reject anything defined as a 'treaty.' So the US must insist that the COP 21 document create no such opening, and the result will be a weaker document--and more to the point, a weaker foundation for mutual trust.
Note that this situation has changed since 1998, when President Clinton declined to submit the Kyoto agreement for Senate approval, having virtually no support from either party. Democrats are mostly willing to sign a climate treaty now--all three Democratic presidential candidates are vying to give it the strongest support, and clearly see it as a winning wedge issue in 2016. That's exactly what Kerry suggested in an effort to reduce the damage to US credibility: Republicans, he said, have "eliminated themselves from contention" in 2016 by their intransigence on this and other issues. Still, the inability of the US Congress to approve a climate treaty becomes a significant fact in Paris, despite visible momentum in the US media and political spheres (even among a few Republican representatives). Kerry, it should be noted, said that "the Paris talks have received very little attention in the US media"--an observation that I believe is becoming increasingly untrue as the summit draws closer.
Kerry was a little less reassuring with regard to the serious problem of financing, which threatens to be the biggest sticking point in Paris. Poorer countries want to know that the $100 billion/year Green Climate Fund will be fully funded, and a coalition of low-lying countries is increasingly adamant that loss-and-damage guarantees, i.e. climate-related disaster relief funding, be written into any agreement. Congress has so far prevented the US from allocating even the $3 billion it currently owes on its Copenhagen pledge--a sum much smaller than the US share of new financing should be. Harvard economist Robert Stavins dismisses the loss-and-damge demand as "unlimited liability for bad weather," and his condescending phrase points to how far the wealthier nations still need to come to reach any understanding of the moral dimensions of the problem.
For his part, Kerry says "We'll get it done," and suggests that President Obama will go to the mat for climate funds in budget negotiations with Congress. Maybe. The fact remains that the mindless, largely non-negotiable hostility of a Republican Congress looms as a fact in Paris, and there are limits to how agilely Obama and Kerry can dance around this impediment.