Institutions and Expertise: The Role of Science in Climate Change Lawmaking

This chapter applies the theory of the firm to argue that the Intergovernmental Panel on Climate Change (IPCC) might more effectively influence international climate change negotiations if it were directly subordinate to the United Nations Framework Convention on Climate Change. The chapter begins by describing the IPCC’s organization, as well as several recent challenges to the credibility of its work, most notably the “Climategate” scandal. The IPCC is an “epistemic institution” — an intergovernmental organization that assimilates basic scientific and/or technical research and applies it to specific legal or policy problems. States create epistemic institutions when unorganized epistemic communities cannot provide policy and law makers with a relevant, credible, and accessible scientific record. Such a record can improve law and policy making by 1) making it more responsive to scientific facts, but just as importantly, by 2) providing policymakers with a common factual basis for negotiations, 3) channeling disagreements into disputes about facts rather than values, and 4) publicly legitimating scientifically-based policies. States must decide whether epistemic institutions like the IPCC should be independent or integrated into a lawmaking institution like the UNFCCC. This chapter argues that epistemic institutions should be integrated into legal institutions when states face a collective action problem, as they do in the climate change context. In these situations, coordinating environmental policies across countries cannot proceed unless a critical mass of states agree. Yet developing states frequently lack the capacity to evaluate the scientific record supporting proposed regulations. They may therefore fear opportunism by developed states in the form of a biased scientific record aimed at encouraging particular outcomes. Developing states may block the adoption of legal rules in part because they do not view the scientific record as credible. Hierarchical control of epistemic institutions can overcome this problem by allowing developing states a role in overseeing the scientific assessment process. By contrast, where a collective decision by a legal institution is not necessary to coordinate state behavior, the decentralized adoption of policy-relevant scientific recommendations signals to developing states that the scientific record is credible, thereby eliminating the need for hierarchical controls to perform the same function. Applying this theory to the IPCC suggests that the IPCC might more effectively influence international climate negotiations if it were integrated into the UNFCCC. Such integration might make it more difficult for climate skeptics to attack the credibility of the IPCC. To be sure, such integration would likely entail costs in terms of the independence of the IPCC and its ability to remain above the political dynamics that have frustrated climate negotiations within the UNFCCC. But because a collective decision on climate change is necessary, bring science closer to politics may counter-intuitively improve the ability of science to influence politics.