by Judith Curry

How multi-level, non-hierarchical governance poses a threat to constitutional government.

Lucas Bergkamp has a new paper [link]:

The Trojan Horse of the Paris Climate Agreement

Lucas Bergkamp and Scott J. Stone

Abstract. There is little novelty to be found in the Paris Climate Agreement. Nevertheless, it may have serious implications for climate policy-making. It establishes an international framework for decentralized climate policy-making by states, which should aim to achieve an ambitious collective objective of limiting global average temperature increase to well below 2 °C or even 1.5 °C. The agreement does not set any mechanism, methodology or criteria, however, for assigning individual mitigation obligations to party states. Indeed, it does not impose any significant substantive obligations on the parties, and, from a legal, as opposed to political or moral, viewpoint, it seems to be virtually non-binding. This gap is destined to become the Paris Agreement’s Trojan horse, because, under the guise of direct democracy in a system of multi-level, non-hierarchical governance, it grants not only credibility but also de facto authority to climate activists, thus posing a threat to constitutional government and representative democracy.

The Paris Agreement demands that nation states acknowledge explicitly that their efforts are inadequate, while setting them up for failure, thus changing the political environment in which climate policy is made. The ambition-obligation disparity creates a large arena for climate activism at international and national levels, effectuating a transfer of power, or at least of influence, that is inconsistent with the fundamental principles of constitutional government. If the collective efforts appear to fall short of achieving the Paris Agreement’s objectives, the judiciary is likely to be dragged into climate policy-making. Climate action groups or executive governments supporting ambitious action will charge the body politic with impotence, declare “government failure,” and seek the help of the courts to get governments to “do the right thing.” To support their claims, they can invoke the admissions and objectives set out in the Paris Agreement.

Thus, in demanding that the signatories concede that their efforts are inadequate, the Paris Agreement paves the way for the new international climate governance. Its implicit reliance on political activism by the climate movement and the related non-hierarchical governance by courts constitute a threat to constitutional government, the rule of law, and representative democracy. It risks an unconstitutional usurpation of power by activist groups and unelected and unaccountable judges that could undermine legislative power and the role of positive law in deciding legal disputes. This risk of subversion is not well understood by politicians and governments.

Nations should protect themselves against these threats. After all, signing away control over climate policy to unaccountable and unelected actors is not in the public interest. Nor is it, under even the most optimistic of circumstances, a viable path to rational, effective and sustainable climate policies. Indeed, the future of representative democracy may be at stake.

Excerpts from the Introduction:

There is more to the Paris Agreement, however, than meets the eye. Both the EU and the United States were instrumental in brokering the Paris deal, even though their objectives were not aligned. The European Commission has presented the agreement as the “first universal, legally binding” climate agreement, calling it “ambitious and balanced.” But the US government takes the position that the agreement is voluntary and imposes only reporting obligations — and no sanctions. That these two protagonists can give such different interpretations to the agreement is the result of the linguistic massage that was necessary to reconcile their conflicting objectives, but doubtlessly complicated the negotiations. The agreement’s wording and legal force (or lack thereof), however, tell only part of the story.

There are other forces at play that can explain why the agreement is both a failure and a success. For one, a reasonable solution of the climate change problem was not in the interest of all stakeholders that flocked to Paris; support for the nuclear energy option, for instance, has disingenuously been called “climate denialism.” The key to understanding Paris, however, is asking the question why so much time and effort has been spent on non-binding commitments and proclamations; if it is all non-binding and unenforceable any way, why bother? Part of the answer is that the Paris Agreement lays out a nice battlefield for climate activism for decades to come; President Obama, somewhat euphemistically, has called the agreement “politically binding.” But, for many countries, it may also have profound effects on government and climate policy-making.

Most importantly, the Paris Agreement does not close the gap between ambition and obligation and, indeed, have widened it by adopting ambitious temperature targets without the apparent means to reach them. This creates not only internal tension, but has broader implications for the dynamics of climate policy-making. An analysis of the agreement should shed light not only on the nature, scope, and content of the obligations imposed on the parties, but also on the agreement’s wider consequences for international and national climate policy-making. It should zoom in on the unspoken, and, maybe, unspeakable, intentions and consequences.

Excerpts from the Conclusions:

An analysis of the agreement’s relation with science shows ambiguity. On the one hand, at several points, chiefly in relation to designing and implementing climate policies, the agreement refers to the best available science. On the other hand, it also sets forth objectives that focus solely on limiting global temperature increase, even though the scientific debate on the relative importance of such increase is still on-going, and no cost-benefit test applies to the selection of policies from a pool of options. As a result, the Paris Agreement may require measures that are inefficient and ineffective in preventing climate-related damage. Given the agreement’s strong focus on temperature, national policy-making may be distorted, and it remains to be seen to what extent the best available science can be invoked to correct the temperature-bias in designing climate policies. Thus, the agreement, while sending unambiguous signals that climate change will remain a preeminent policy issue for decades to come, serves to allow ambiguity to fester in terms of just what all that attention will produce, politically, policy-wise, and legally.

And then, perhaps most importantly, there is a deeper, hidden level of uncertainty associated with the Paris Agreement. Reflecting strong climate advocacy and sophisticated strategy, the agreement fails to close (or even widens) the gap between what should be done and what has been agreed. It demands that nation states admit that their efforts are inadequate, while setting them up for failure, thus changing the political environment in which climate policy is made. The ambition-obligation disparity creates a large arena for climate activism at international and national levels, effectuating a transfer of power, or at least of influence, that is inconsistent with the fundamental principles of constitutional government. Countries are subject to the forces of regulatory competition, and have incentives to do as little as possible or at least to lag behind. Despite widespread activism, the lack of any mechanism to overcome the ambition-obligation disparity therefore will likely result in a failure to reach the collective targets. While the state parties may think they will have to go back to the negotiation table once that has happened, the reality may be different.

If the collective efforts appear to fall short of achieving the Paris Agreement’s objectives, the judiciary is likely to be dragged into climate policy-making. Climate action groups or executive governments supporting ambitious action will charge the body politic with impotence, declare “government failure,” and seek the help of the courts to get governments to “do the right thing.” To support their claims, they can invoke several features of the Paris Agreement, including its recognition of the need for urgent action to fight dangerous climate change, its high goals, its ambitious substantive provisions, and the parties’ admissions of impotence, all of which can be cited to give content to the parties’ procedural obligations. Thus, climate policy lawsuits against governments to force them to adopt stronger emission reduction policies are not necessarily prevented by the absence of binding emission reduction obligations or targets in the Paris Agreement. Experience thus far has shown that courts concerned about the government’s failure to adequately address climate change, are willing to entertain such law suits and order governments to step up their climate policies, even though such orders are legally doubtful.

At its most fundamental level, this constitutes a threat to constitutional government, the rule of law, and representative democracy. It risks an unconstitutional usurpation of power by activist groups and unelected and unaccountable judges that could undermine legislative power and the role of positive law in deciding legal disputes. This risk of subversion is not well understood by politicians and governments. If this risk materializes, the non-binding parts of the agreement, which were the least haggled over, will turn out to be the most influential “legal” provisions. And, unlike executive governments, judges have no way of ensuring that other nations do their fair share; they can rely only on their colleagues’ enlightened thinking, which may not be as generalized as they might hope.

Irrespective of whether these features are parts of some intentional design, the Paris Agreement thus may turn out to be a Trojan horse.

While it does little to reduce the threats it impresses upon the people, it creates risks of a different kind: although it operates under principles of law, it threatens our constitutional arrangements, including the separation of powers. In deciding on ratification, countries should consider not only the need for international coordination of climate policy, but also the protection of their constitutions, representative democracy, and the rule of law. Specifically, once they agree to Paris’ high collective ambition and ambitious substantive requirements, countries need to be mindful of the risks of activists and the judiciary taking over when it becomes clear that the world will not deliver.

JC reflections

In my presentations on climate change, I have often asked the question regarding CO2 mitigation policy: is the cure worse than the disease? Specifically, I was referring to to the costs of changing our power sources and energy infrastructure, concerns about reliability of the power supply, and damage to the economy.

In this paper, Bergkamp and Stone articulate yet another ‘disease’ potentially caused by the Paris climate ‘cure’ – the issue usurpation of national constitutional arrangements. We are already seeing signs of a hyperactive judiciary in this regard, notably the Urgenda case.

The other issue of concern raised by Bergkamp and Stone that I also think is critical is that the Paris Agreement may require measures that are inefficient and ineffective in preventing climate-related damage. Neither the problem or the solutions for climate change should be regarded as irreducibly global. As is often the challenge with a wicked mess, we may find that we are pointing our arrows at the wrong target, with mess indicating a ‘cure’ that is worse than the disease.

This is clearly an issue that bears watching and further examination; I am of course particularly watching the legal challenges in the U.S. to Obama’s climate plan.