Duke Journal of Comparative & International Law
climate change, energy, renewable energy, energy policy
Environmental Law | Law
Scholars and commentators have long argued that issue linkages provide a way to increase cooperation on global public goods by increasing participation in global institutions, building consensus, and deterring free-riding. In this symposium article, I argue that the emphasis on the potential of issue linkages to facilitate cooperation in these ways has caused commentators to underestimate how common features of international legal institutions designed to accomplish these aims can actually undermine those institutions’ ability to facilitate cooperation. I focus on two features of institutional design that are intended to encourage participation in public goods institutions but can create the risk of gridlock and governance failure, which I refer to as governance risk. I illustrate the argument with examples from international energy governance.
First, many public goods institutions are epistemic institutions. They establish processes for exchanging and evaluating information in an effort to reduce scientific uncertainty as a barrier to bargaining over substantive regulation among states with diverse epistemic and normative commitments. However, institutions that merge 1) the knowledge-exchange and development processes with 2) the ability to negotiate and impose binding legal regulations run the risk that states that oppose the imposition of substantive regulations for reasons that are independent of scientific knowledge will use epistemic processes as a way to try to block the adoption of substantive regulation.
Second, governance risk can be systemic. Policies adopted in one institution can lead to governance failures or higher costs to cooperation in other institutions. For example, cooperation in an area such as energy security, with its focus on stable and cheap access to fossil fuel supplies, can crowd out cooperation on climate change, with its focus on raising the prices of carbon-intensive energy sources. States in one institution might also respond to the threat of interference from another institution by attempting to obstruct the other institution’s mission, as members of OPEC have done during the climate change negotiations. Systemic governance risk is an underappreciated negative externality of cooperation in the fragmented international legal system.
I conclude by arguing that further fragmenting institutions by giving them very narrow mandates can sometimes reduce both institutional governance risk, the risk the institution itself fails, and systemic governance risk, the risk it causes other institutions to fail. I explore this argument in the context of a relatively new intergovernmental organization, the International Renewable Energy Agency (IRENA). IRENA mitigates its governance risk by divorcing epistemic issues from the ability to promulgate binding legal rules, focusing almost entirely on the former. At the same time, IRENA mitigates its contribution to systemic governance risk by focusing on long-run market trends in renewable energy that are largely ungoverned by existing international institutions. IRENA thus does not offer the promise of grand cooperation held out by institutions such as the UNFCCC, but neither is it likely to founder on the cooperative challenges those institutions face. Instead, institutions such as IRENA - that mitigate the risks they pose to the interests of member states and other institutions - offer the realistic possibility of incremental cooperation on the provision of public goods.
Global Public Goods, Governance Risk, and International Energy, 22 Duke Journal of Comparative & International Law. 319
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/757