While it is not over until it is over, on this the penultimate day of the most important international conference on global climate change in this decade, it seems pretty clear that it is going to end in failure. There will be no binding treaty. It is not clear there will even be an agreed framework for such a treaty. There is no agreement on emission targets or benchmarks. Maybe there will be some progress on REDD and on a fund to help vulnerable nations adapt to some of the predicted effects of global warming. But overall, the COP15 Climate Conference in Copenhagen will go down in history as a failure.

Why did this happen? Did it really have to turn out this way? I am sure there will be lots of post-mortems written in the coming days and weeks. Here is my first volley.

The US never joined the 1997 Kyoto Treaty. COP15 was supposed to come up with a new treaty to extend or replace Kyoto when it expires in 2012. At the time Kyoto was negotiated the U.S. Congress was controlled by the Republican Party (the GOP -- a.k.a. The Guardians of Profit). The nominally Democratic President, Bill Clinton, knew full well that getting this treaty ratified in the GOP US Senate had about the same chances as a snowball in the Maldives. So even with Al "Carbon Tax" Gore as his Vice-President, he caved to Republican opposition and adopted a negotiating in Kyoto position that said that the US would not commit to binding carbon emission reductions until the developing countries also accepted them.

At the time, major developing economies such as China, India and Brazil, were refusing to do so because, they argued, most all of the CO2 in the atmosphere that was causing the problem was the result of historical emissions by the older industrialized countries. most notably the USA, which at the time accounted for roughly 25% of global emissions but had only 5% of the world's population. So there was an "After you Alfonse" type stalemate. The US would not agree to binding emission targets until the developing countries did, and they would not agree to reduce their emissions until the USA owned up to its responsibility.

But things began to change dramatically two years ago at the Bali climate conference when the US representative was heartily booed when she reiterated this tired old position that the Bush administration had stuck with. Moreover, China and other major developing industrial countries announced at Bali that they were now willing to commit themselves to carbon emission reduction targets, removing one of the big obstacles to successfully negotiating a new treaty regime in Copenhagen this December.

So what happened? Well we got a new US President who says he is committed to the US doing its part to address the threat of global climate disruption. And now the US Congress is controlled by members of his own party in both the House and the Senate. Good opportunity right?

Wrong. The US moved the goal-posts. Now they are saying that they cannot commit to any binding agreement with robust emission reduction targets because they don't think they can get any bill through the Senate unless Senators from coal-producing and oil-producing, and smoke stack industry states can be assured that China, and India and Brazil are not cheating on their claimed emission reductions and taking jobs away from American workers while continuing to pollute the atmosphere on the sly.

The developing nations have bristled at the suggestion that they cannot be trusted to keep their words, so we have another "After you Alfonse" type stalemate. This time the US will not say it can commit to binding emissions targets unless the developing nations first commit to a verification scheme of some sort. While the developing nations are saying, we already came halfway on our own, but what have you (the USA) done? Bupkiss.

The 2020 carbon emissions targets suggested in the current House bill that form the basis of the current US negotiating position, are terribly weak. They are really only 4% below the internationally accepted 1990 baseline, and they are not even law yet and may never get to be law. The Europeans, the Japanese, and other developed countries, have stated that they will commit to 2020 reduction targets below the 1990 baseline of between 20-25%

Why is the US target so weak? Because, well, you see, we have this stupid procedural rule in the Senate that says that you need 60 senators to agree to end debate on proposed legislation.  If 4% was the best the House could come up with, what are the chances that the Senate will go for more ambitious reduction targets. Bupkiss.

That is why Sen. John Kerry went to Copenhagen this week to try to reassure COP15 delegates that the US Senate will pass a bill this spring with binding emissions targets, but only if the Chinese and other developing countries first agree to a verification scheme that they can use to convince recalcitrant and obstructionist Senators (read Republicans, a few conservadems, and of course our friend Joe Lieberman) from blocking it in the Senate just as they have done with Health Care Insurance Reform this fall. So the Fate of the Earth comes down to the dysfunctional US Senate and its stupid filibuster rule.

Or does it? According to the US Constitution, treaties must be ratified by two-thirds of the Senate, that is, by 66+1 Senators. In the United States, the term "treaty" has a different, more restricted legal sense than exists in international law. U.S. law distinguishes what it calls treaties from treaty executive agreements, congressional-executive agreements, and sole executive agreements. All four classes are equally treaties under international law; they are distinct only from the perspective of internal American law.

The distinctions are primarily concerning their method of ratification. Whereas treaties require advice and consent by two-thirds of the Senate, sole executive agreements may be executed by the President acting alone. Some treaties grant the President the authority to fill in the gaps with executive agreements, rather than additional treaties or protocols. Currently, most international agreements are executed by executive agreement rather than treaties at a rate of 10:1.

Despite the relative ease of executive agreements, the President still often chooses to pursue the formal treaty process over an executive agreement in order to gain congressional support on matters that require the Congress to pass implementing legislation or appropriate funds, and those agreements that impose long-term, complex legal obligations on the U.S.

So what are the chances that President Obama is going to use his power to make executive agreements to bind the US, even provisionally, to a binding treaty?

Bupkiss. He needs political cover from the Congress. This is also the reason why he is not going to use the newly sanctioned power of the EPA to directly regulate greenhouse gasses as harmful pollutants. Doing so would bypass the Congress and expose him to merciless attacks from the GOP, threatening his prospects for re-election in 2012.

But in order to get Congressional cover (buy-in) he needs both the House and the Senate, and we already know what a cesspool of deceit and obstruction the Senate is these days. So, sadly, once again, the Fate of the Earth hangs on the existence of a stupid procedural rule of the Senate that prevents electoral majorities from passing legislation without the consent of 60 Senators.

To be fair, the failure of COP15 is not entirely due to US non-commitment. Our neighbor the the North, Oh Canada, with its current conservative government, has linked itself to the US position on reduction targets and binding agreements and is standing with the US in blocking a deal in Copenhagen. Canada is, in case you don't know, the #1 supplier of petroleum to the US market, far ahead of the Middle East. Canada also has the Athabasca oil sands (or tar sands) in Northern Alberta, which are really going to start paying off big time once we reach Peak Oil (perhaps we already have) and the price of petroleum starts to relentlessly rise as supply declines while demands increases.

Peak Oil is the real underlying driver of the "go slow" or "go not at all" approaches to an energy transition in this century. The oil producing states, and the major oil companies that hold long term leases, want to delay the transition to a carbon-neutral energy economy as long as they possibly can. If they don't succeed in stalling the process  they stand to lose something on the order of $100 trillion in revenues during the remainder of this century. Much of that money that would be left on the table if the world manages to accelerate the shift to carbon neutrality sooner rather than later by making green energy cheaper than dirty petroleum and other fossil fuels. The environmentalists, of course, are worried that if we prolong the end of the Oil Age we are risking cooking the planet and producing catastrophic changes in the climate that will take centuries to correct, if they can ever be corrected at all. So far the oil producers have been winning.

Hey, but what does catastrophic damage to the Earth, its people, and its living species matter if the oil companies lose all those healthy profits in the process? The Bush administration made no bones about its non-energy policy being designed (in still secret meetings with oil company officials in Dick Cheney's office) to protect future oil company profits. At least Dubya was not a hypocrite.

But Obama campaigned on the slogans "Hope You Can Believe In" and "Yes We Can" Well those slogans are wearing pretty thin right now. If Obama is not willing to take any political risks to lead this country to a better place, then in three years if you ask the people in his base whether they still believe that Obama will bring change, they will be saying "Nope."