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Notes & Comments Notes & Comments The Truth Behind International Climate Agreements: Why They Fail and Why the Bottom-Up is the Way Forward. A Game Theory Analysis Krishna Prasad* * J.D. candidate, University of Colorado Law School. 218 Colo. Nat. Resources, Energy & Envtl. L. Rev. [Vol. 28:1 Table of Contents I. INTRODUCTION ............................................................................. 219 II. ROBERT PUTNAM'S TWO-LEVEL GAME THEORY ................ 223 A. Level I and Level II Negotiations ....................................... 223 B. Win-Sets ............................................................................. 224 1. Level II Preferences and Coalitions ................. 225 2. Level II Institutions .......................................... 226 3. Level I Negotiators and Strategies ................... 226 III. APPLYING TWO-LEVEL GAME THEORY TO INTERNATIONAL CLIMATE AGREEMENTS: WHY MONTREAL SUCCEEDED AND KYOTO FAILED .............. 227 A. Montreal Protocol Success ................................................. 228 1. Pre-Negotiation Win-Sets................................. 229 2. Negotiating the Montreal Protocol ................... 231 3. Conclusion ........................................................ 233 B. Kyoto Protocol Failure ....................................................... 233 1. Framing the Kyoto Protocol: The UNFCCC, the Berlin Mandate, and the Byrd-Hagel Resolution ......................................................... 235 2. The Kyoto Protocol Negotiations ..................... 237 3. Conclusion ........................................................ 242 IV. BEYOND KYOTO: WHY A STRONG CLIMATE AGREEMENT NEVER MATERIALIZED .............................. 243 V. THE BOTTOM-UP WORLD: HOW PLEDGE-AND-REVIEW AND SUBNATIONAL INITIATIVES ARE LEADING THE FIGHT AGAINST CLIMATE CHANGE ................................. 245 A. The Paris Agreement .......................................................... 246 1. The Paris Agreement: Avoiding Ratification ... 246 2. The Paris Agreement: Complying With the Agreement ........................................................ 248 B. SUBNATIONAL INITIATIVES TO FIGHT CLIMATE CHANGE: ACRE, BRAZIL AND CALIFORNIA ............ 251 VI. CONCLUSION ............................................................................... 253 2017] The Truth Behind International Climate Agreements 219 I. INTRODUCTION Climate change is one of the biggest problems facing the world today. It is no longer just environmental groups who are warning of the threat. In 2014, the Pentagon released a report in which they determined that climate change was the greatest threat to national security, citing rising sea levels, more violent storms, and increased widespread droughts.1 Major companies have also joined the call for action, with eighty-one companies signing the American Business Act on Climate Pledge, which calls for these companies to reduce their emissions and invest in clean energy.2 The companies - including giants such as Apple, Walmart, Target, PG&E, and Monsanto - that have signed the pledge have over $3 trillion in revenue and a total market value of over $5 trillion.3 Due to the enormity of the problem and the large voices calling for solutions, it is clear that it is time to take action. The last time the world faced a major international environmental problem, countries banded together and took swift measures to solve the crisis. In 1974, a research paper by Sherwood Rowland and Mario Molina indicated that chlorofluorocarbons (CFCs), chemicals commonly used in aerosols, air conditioning, and refrigeration, were drifting into the upper atmosphere and damaging the ozone layer.4 In 1987, just thirteen years after the Roland and Molina paper, the world came together to sign the Montreal Protocol, an aggressive international agreement designed to curb the use of CFCs and prevent further damage to the ozone layer.5 Thanks to the success of the Montreal Protocol, the ozone layer has begun to increase after years of decreasing, and a potential extra two million cases of skin cancer by 2030 have not occurred.6 1 Coral Davenport, Pentagon Signals Security Risks of Climate Change, THE NEW YORK TIMES (Oct. 13, 2014), http://www.nytimes.com/2014/10/14/us/pentagon-says- global-warming-presents-immediate-security-threat.html. 2 The White House Office of the Press Secretary, FACT SHEET: White House Announces Commitments to the American Business Act on Climate Pledge (Oct. 19, 2015) (on file with author). 3 Id. 4 Cass. R. Sunstein, Of Montreal and Kyoto: A Tale of Two Protocols, 38 ENVTL. L. REP. 10566, 10567 (2008). 5 See Montreal Protocol on Substances that Deplete the Ozone Layer, opened for signature Sept. 16, 1987, 1522 U.N.T.S. 29 (entered into orce Jan. 1, 1989) [hereinafter Montreal Protocol]. 6 Associated Press, Earth’s protective ozone layer is beginning to recover, a U.N. panel reports, THE WASHINGTON POST (Sept. 15, 2014) https://www.washingtonpost.com/national/health-science/earths-protective-ozone-layer- is-beginning-to-recover-a-un-panel-reports/2014/09/15/a814ba9c-39c2-11e4-9c9f- ebb47272e40e_story.html. 220 Colo. Nat. Resources, Energy & Envtl. L. Rev. [Vol. 28:1 It was not long after the Montreal Protocol that the world began to turn its attention to climate change. In 1988, just one year after the signing of the Montreal Protocol, Dr. James Hansen, a scientist with NASA, told a congressional committee that carbon dioxide buildup was causing the global warming trend.7 Shortly following Hansen’s testimony, 165 countries signed the United Nations Framework Convention on Climate Change in 1992 (UNFCCC).8 The UNFCCC is an international treaty which serves as a framework for international cooperation to fight climate change.9 The UNFCCC called on the signatory countries to come together and create a binding international agreement to fight climate change.10 However, unlike the success of the Montreal Protocol, there has not been a successful strong international agreement on climate change to complement the UNFCCC. The United States famously never ratified the Kyoto Protocol and Canada dropped out in 2011, citing the fact that the goals of Kyoto were unreachable due to a lack of agreement between the United States and China.11 Subsequent attempts to reach an agreement have not been successful either. The parties to the Kyoto Protocol, including the United States, will meet every year, unless otherwise specified, for a Conference of the Parties (COP).12 The COP aims to add to the existing protocol and negotiate further deals.13 Unfortunately, this negotiation has been unsuccessful, as evidenced by the 2000 climate talks, the 2009 Copenhagen Accord, and the 2014 talks in Lima, which all failed to produce an agreement.14 7 Philip Shabecoff, Global Warming Has Begun, Expert Tells Senate, THE NEW YORK TIMES (June 24, 1988), http://www.nytimes.com/1988/06/24/us/global-warming-has- begun-expert-tells-senate.html?pagewanted=all. 8 See Generally United Nations Framework Convention on Climate Change, opened for signature June 4, 1992, 1771 UNTS 107 (entered into force Mar. 21, 1994). [hereinafter UNFCCC] 9 United Nations, Background on the UNFCCC: The international response to climate change, UNITED NATIONS FRAMEWORK ON CLIMATE CHANGE CONVENTION, http://unfccc.int/essential_background/items/6031.php (last visited March 9, 2016 11:47 AM). 10 UNFCCC, supra note 8. 11 Kyoto Protocol Fast Facts, CNN (March 30, 2016 1:12 PM) http://www.cnn.com/2013/07/26/world/kyoto-protocol-fast-facts/. 12 United Nations, Conference of the Parties, UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE, http://unfccc.int/bodies/body/6383.php (last visited Feb. 24, 2016). 13 Id. 14 ICTSD, COP 6: US-EU Differences Blamed for Failure of Climate Change Negotiations, INTERNATIONAL CENTER FOR TRADE AND SUSTAINABLE DEVELOPMENT (Nov. 28, 2000), http://www.ictsd.org/bridges-news/bridges/news/cop-6-us-eu-differences- blamed-for-failure-of-climate-change-negotiations (arguing that the meeting failed to produce an agreement due to a number of disagreements between the US and the EU on vital issues); John Vidal, Allegra Sratton & Suzanne Goldenberg, Low targets, goals 2017] The Truth Behind International Climate Agreements 221 Robert Putnam’s two-level game theory perfectly explains why the Montreal Protocol succeeded, and why the Kyoto Protocol and other international climate agreements failed. Two-level game theory states that in any international negotiation, there is a second ongoing negotiation on the domestic level in order to determine what kind of agreement can ultimately be ratified by the relevant domestic legal procedures.15 A two- level game theory analysis suggests that it is unlikely that there will ever be a strong international climate agreement because the United States would need two-thirds of the Senate to ratify any such agreement. Due to the Senate’s current conservative tilt and the industry opposition to any strong international climate agreement, which in turn influences the Senate, the United States will only ever be able to ratify an international agreement if it is weak on emissions requirements. The inability of the United States to ratify a strong international climate agreement has helped shift the world towards a bottom-up approach16 to climate change. In addition to the problems posed by Level II issues in the United States, this shift to a bottom-up approach has come about because it allows countries and regional governments to take quicker decisive action on climate change without
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