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A New Status Quo? The Psychological Impact of the Paris Agreement on Climate Change

Published online by Cambridge University Press:  20 January 2017

Arden Rowell  and
Josephine van Zeben
Arden Rowell
Affiliation:
University of Illinois, Harvard Law School
Josephine van Zeben
Affiliation:
Public and EU Law, Worcester College, University of Oxford
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Extract

This brief opinion piece draws upon behavioural and cognitive research to argue that the Paris Agreement's goal of keeping global temperature change below 2 degrees Celsius sets a psychologically powerful baseline against which future policy failures can be measured. When international law successfully triggers perception of a baseline, it can lead decision makers to perceive deviations from that baseline as “losses.” This implicates loss aversion, which provides an additional motivation to achieve international norms. The psychological impacts of this new status quo may end up being more powerful and more durable than either the unusual structure of the document or the domestic implementation questions that have already attracted so much scholarly debate.

Type
Mini-Symposium on the Paris Agreement on Climate Change
Information
European Journal of Risk Regulation , Volume 7 , Issue 1 , March 2016 , pp. 49 - 53
Copyright
Copyright © Cambridge University Press 2016

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References

1 Full text available on http://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf.

2 The Protocol's ratification process was fraught with political controversy and did not happen until 2005. See http://unfccc.int/resource/docs/convkp/kpeng.pdf.

3 See, e.g., http://www.theguardian.com/environment/2009/dec/18/copenhagen-deal; see also http://www.bbc.com/news/science-environment-34274461 (suggesting that even the word “Copenhagen” was a “word that dare not be uttered” by anyone at the Paris meeting; a disaster that “still haunts the process six years on”).

4 Perhaps most critically, the United States and China entered into a bilateral agreement to reduce emissions, see https://www.whitehouse.gov/the-press-office/2015/09/25/us-china-joint-presidential-statement-climate-change.

5 See most recently the Fifth Report of the Intergovernmental Panel on Climate Change (2014), available at https://www.ipcc.ch/report/ar5/wg3/.

6 See, e.g., Jonathan Katz, Who Wants What in the Final Climate Deal, New Republic, https://newrepublic.com/article/125662/wants-final-climate-deal (December 11, 2015).

7 The practical challenges are recognized even within the decision that adopts the Paris Agreement, see paragraph 17 (“Notes with concern […] that much greater emission reduction efforts will be required than those associated with the intended nationally determined contributions in order to hold the increase in the global average temperature to below 2 °C above pre-industrial levels […] or to 1.5 °C above pre-industrial levels […]”)

8 For the concluded Paris Agreement and supporting documentation, please visit http://unfccc.int/meetings/paris_nov_2015/session/9057/php/view/documents.php

9 See e.g. Article 2(2) (“This Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.”) and Article 4(1) of ibid (“In order to achieve the long-term temperature goal set out in Article 2, Parties aim to reach global peaking of greenhouse gas emissions as soon as possible, recognizing that peaking will take longer for developing country Parties, […] on the basis of equity, and in the context of sustainable development and efforts to eradicate poverty.”)

10 Article 2(1) Paris Agreement.

11 James Hansen as quoted in http://www.theguardian.com/environment/2015/dec/12/james-hansen-climate-change-paris-talks-fraud.

12 Jeffrey Sachs as quoted in http://www.cbc.ca/news/technology/climate-scientists-paris-1.3366751

13 French President Hollande as quoted by http://www.independent.co.uk/environment/cop21-ministers-keep-the-world-waiting-for-ratification-of-historic-climate-change-target-a6770821.html.

14 The structure of the Paris Agreement is rather idiosyncratic, with the actual Agreement placed in an Annex to a COP decision. For an anticipatory discussion of the Agreement's particular form and its implications, see Maljean-Dubois, S. et al, ‘The Legal Form of the Paris Climate Agreement: A Comprehensive Assessment of Options’ (2015) Carbon and Climate Law Review 68 Google Scholar.

15 Ebinger, C., ‘Transforming the Global Energy Environment’, in Bhattacharya, A. et al, COP21 at Paris: What to Expect (Brookings Institute, 2015) at 34 Google Scholar.

16 See Dan Kahneman, Jack Knetsch & Richard Thaler, Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias, 5 J. Econ. Persp. 193 (1991); William Samuelson & Richard Zeckhauser, Status Quo Bias in Decision Making, 1 J. Risk & Uncertainty 7 (1988).

17 See John T. Jost, Mahzarin R. Banaji & Brian A. Nosek, A Decade of System Justification Theory: Accumulated Evidence of Conscious and Unconscious Bolstering of the Status Quo, 25 Pol. Psychol. 881 (2004).

18 See Russell Korobkin, Inertia and Preference in Contract Negotiations: The Psychological Power of Default Rules and Form Terms, 51 Vand. L. Rev. 1583 (1998) (finding that the substance of legal default rules can create status quo bias in the direction of the legal rule).

19 An interesting question—beyond the scope of this piece—is the extent to which cognitive phenomena affect nation states as a group, as opposed to merely the individual decision-makers within those nation states. At least some empirical research suggests that group-based decision-making can often exacerbate the underlying biases of individuals. See, e.g., Cass Sunstein, Deliberative Trouble? Why Groups Go to Extremes, 110 Yale L.J. 71 (2000).

20 See, e.g., Richard H. Thaler, Toward a Positive Theory of Consumer Choice, 1 J. Econ. Behav. & Org. 39 (1980) (describing the endowment effect);

21 See Kahneman, Daniel & Tversky, Amos, Prospect Theory: An Analysis of Decision Under Risk, 47 Econometrica 263 (1979)CrossRefGoogle Scholar (noting that the tendency of people to overweight certain outcomes and underweight probabilistic outcomes may lead people to accept overly high risks in the hopes of avoiding a certain loss); Amos Tversky & Daniel Kahneman, Loss Aversion and Riskless Choice: A Reference-Dependent Model, 106 Q. J. Econ. 1039 (1991); see also Russell Korobkin, Behavioral Economics, Contract Formation, and Contract Law, in Behavioral Law and Economics at 116 (2000) (describing the perceived relationship between status quo bias and the endowment effect).

22 The combination of these effects underlies most of the most wellknown behavioural “nudges” of the past decade. See, e.g., Richard Thaler & Shlomo Benartzi, Save More Tomorrow: Using Behavioral Economics to Increase Employee Saving, 112 J. of Pol. Econ. 164 (2004) (advocating for the use of default rules to take advantage of people's preference for the status quo to encourage additional saving behaviours).

23 Although scholars occasionally mention the status quo in international law, this seems generally to be in the colloquial sense rather than in the psychological sense. See, e.g., Guzman, Andrew T. and Meyer, Timothy L., International Soft Law, (2010) 2 (1) Journal of Legal Analysis 171–225 CrossRefGoogle Scholar. We find only one substantive discussion of status quo bias in the international legal literature: an interesting treatment by T. Broude, which focuses on the barriers status quo bias can create in reaching international agreements, and which does not discuss the potential impact of international law on creating perceived status quos. See T Broude, Behavioral International Law, (2015) 163 University of Pennsylvania Law Review 1099.

24 For an overview of the literature on this point, see W. Bradford, International Legal Compliance: An Annotated Bibliography, 30(2) North Carolina Journal of International Law (2004) 379-428.

25 For an overview of this puzzle and the presentation of a potential solution, see A. Bradford and O. Ben-Shahar, “Efficient Enforcement in International Law”, 12 Chicago Journal of International Law 375 (Winter 2012). See also See e.g. R. Goodman ad D. Jinks, How to Influence States: Socialization and International Human Rights Law, 54 Duke Law Journal (2004), 621 – 703 (on a social theory of state behavior).

26 See e.g. Snidal, Duncan, “Rational Choice and International Relations” in Carlsnaes, Walter, Risse, Thomas & Simmons, Beth A., eds, Handbook of International Relations (London, UK: Sage Publications, 2013) 85 CrossRefGoogle Scholar and Jack L. Goldsmith and Eric A. Posner, A Theory of Customary International Law, 66 U. Chi. L. Rev 1113 (1999).

27 Finnemore, Martha & Sikkink, Kathryn, “International Norm Dynamics and Political Change” (1998) 52:4 International Organization 887–917 CrossRefGoogle Scholar; Goodman, Ryan & Jinks, Derek, Socializing States. Promoting Human Rights Through International Law (Oxford, UK: Oxford University Press, 2013)CrossRefGoogle Scholar. See also cf. Anne van Aaken, “To Do Away with International Law? Some Limits to ‘The Limits of International Law’” (2006) 17 The European Journal of International Law 289–308 (critiquing Goldsmith and Posner, ibid, and on alternative theories including social norms).

28 Ibid.

29 See Lisa Zaval, Elizabeth Keenan, Eric J. Johnson & Elke Weber, How warm days increase belief in global warming, 4 Nature Climate Change 143 (12 June 2013).

30 For a useful summary of psychological research on conformity, see Elliot Aronson, “Conformity,” in The Social Animal (2011).

31 See e.g. Article 2 of the UNFCCC.

32 See generally Guzman and Meyer, supra note 21.