PUBLISHED:September 21, 2016

Jonathan Wiener addresses climate, catastrophes, retrospective review, TTIP, and China’s environmental risk regulation

Prof. Jonathan Wiener Prof. Jonathan Wiener

Over the past two years Professor Jonathan Wiener has deployed his expertise on U.S., European, and international environmental law and risk regulation in projects that address a range of global challenges.

Eco-environmental risk management in China

During 2015, Wiener, the Perkins Professor of Law and of Environmental Policy and Public Policy, served as one of five international experts on a team with Chinese colleagues to prepare a report and recommendations on “Eco-environmental Risk Management” for the China Council for International Cooperation on Environment and Development (CCICED). The team met several times, culminating in Beijing in September 2015, to prepare its report.  In November, the CCICED accepted the team’s report, and it was subsequently presented to the State Council of China. The report recommends reforming and improving policies and institutions to manage environmental risks, including air and water pollution, soil contamination, chemicals, climate change, and other risks.  A key recommendation was that China should establish a National Environmental Risk Board to assess and coordinate all the challenges facing the country, ameliorating the fragmentation, gaps and tradeoffs in current policies — an idea that Wiener and his co-author John Graham proposed in a 1995 book, Risk vs. Risk, and that the World Bank espoused in its 2014 report on Managing Risk for Development.

Monitoring and verifying climate-policy effectiveness

Wiener continued his work on international climate change agreements — begun 25 years ago, when he served in the U.S. government and helped negotiate the first climate treaty, the Framework Convention on Climate Change (FCCC), signed at the Rio Earth Summit in 1992.  Building on his recent co-authorship of the IPCC 5th Assessment Report chapter on “International Cooperation: Agreements and Institutions” (2014), Wiener contributed a chapter on “Towards and Effective System of Monitoring, Reporting, and Verification” (MRV) to a new book addressing the key issues in the December 2015 Paris Agreement.  

MRV is crucial because the Paris Agreement calls on all countries to adopt national climate policies, which need to be tracked and measured, Wiener argued.  “It’s essential to ensure a broad scope of MRV from the beginning so that countries’ policies and national plans can be comprehensively evaluated and compared,” he said.  Wiener’s chapter identifies several key functions of MRV, including comparing a country’s actual performance to its own policy pledge; comparing performance across countries; aggregating all countries’ efforts to see how they compare to global objectives for protecting the climate; comparing across different policy instruments to evaluate which ones are most successful; and identifying potential ancillary impacts, not only on greenhouse gasses, but potential co-benefits of reducing other pollutants or potential countervailing risks of increasing other pollutants or land use changes.  He also published an article with Peter Sand of the University of Munich, titled, “Toward a New International Law of the Atmosphere?,” that examines the fragmentation of current international regimes and the need for a more comprehensive understanding of the tensions and gaps.  This article grew out of the course of the same name that Wiener and Sand co-taught at Duke Law’s Summer Institute in Geneva in 2015.  Wiener also pursues these ideas with students in the course he co-teaches with public policy professor Billy Pizer, the “UN Climate Negotiations Practicum,” in which class members study and then travel to attend the annual conference of the parties to the FCCC.

Rethinking regulation

Policy learning — evaluating and updating regulatory policies — is central to several of Wiener’s recent projects. Along with colleagues at Duke University’s Rethinking Regulation program, which he co-directs, Wiener led a yearlong Bass Connections project, “Reviewing Retrospective Regulatory Review” (RRRR), which studied how governments are attempting to evaluate their past regulations. (Bass Connections is a new program at Duke that brings together faculty, graduate and undergraduate students to explore real-world issues in interdisciplinary research teams.)

“Government agencies often try to evaluate in advance to decide whether to adopt a policy or to promulgate a rule, but they have done relatively little follow-up evaluation or ex post assessment,” he said, noting that in 2011, President Barack Obama issued an executive order calling on U.S. federal agencies to do more such retrospective review.  The class studied the emerging efforts of government agencies around the world to evaluate the actual impacts of their regulatory programs. Through comparative analysis of case studies at the local, national, and international levels, across multiple topic areas, team members examined how well review mechanisms function and how they can be improved. A report on the project is in progress.

Retrospective review also was the subject of Wiener’s address when he delivered Florida State University’s annual distinguished lecture on environmental law, titled “Environmental Law Goes Retro: Learning Foresight from Hindsight.” The talk forms the basis of a forthcoming article in the Journal of Land Use & Environmental Law that Wiener is co-authoring with SJD student Daniel Ribeiro.

Another strand of this work focused on international regulatory cooperation, specifically on mega-regional trade agreements such as the Trans-Pacific Partnership (TPP) and the pending Transatlantic Trade and Investment Partnership (TTIP), which seek to reduce or to harmonize regulatory differences. Wiener co-edited a symposium issue of Law & Contemporary Problems titled “New Approaches to International Regulatory Cooperation,” published in January. In addition to co-authoring the volume’s introductory essay, which reviews the challenges posed by TTIP, TPP, and other mega-regional trade agreements, Wiener co-authored with Alberto Alemanno an article suggesting these trade agreements on regulatory cooperation are a valuable opportunity not only to reduce regulatory differences, but to study the variation in regulatory standards across countries to learn what consequences flow from those differences.

“Our argument is not to rush to harmonize until we have learned how to harmonize,” Wiener said. “Harmonization may promote trade, which can be desirable, but that still leaves open the question of which standard to harmonize to.  Harmonize at what?  If two countries have different levels of stringency or use different policy instruments, it’s not clear which would be preferable – or some even better third option. And in some cases, retaining variation may be desirable to serve differing local preferences and needs.  So we recommend learning from regulatory differences through the development of a ‘global policy laboratory’ that takes advantage of regulatory variation to study and develop even better approaches.”

In April 2016, the Rethinking Regulation program held a conference on U.S.-European regulatory relations, further exploring issues of international regulatory cooperation and policy variation that are raised by the ongoing TTIP negotiations. Participants included academics and officials from both the U.S. and the European Union, and the conference featured a keynote address by Howard Shelanski, the administrator of the White House Office of Information and Regulatory Affairs (OIRA).

Rethinking Regulation will host its 2017 symposium on April 20-21. The focus of this year's event will be on pharmaceutical regulation and access in developing nations.

Wiener is now drafting a multi-author report due out in March 2017 from the International Risk Governance Council (IRGC), comparing US and EU approaches to the regulation of food, chemicals, pharmaceuticals and automobiles.  This report was commissioned by the European Parliament’s research office to help inform its members on the TTIP negotiations.

Crises, catastrophes and regulation

Wiener is also exploring how regulation can deal with rare extreme events — crises and catastrophes.  Along with his Rethinking Regulation colleagues Ed Balleisen, Duke’s vice provost for interdisciplinary studies, Nicholas School Professor Lori Bennear, and Kimberly Krawiec, the Kathrine Robertson Everett Professor of Law, Wiener is co-editing the new book Policy Shock: Recalibrating Risk and Regulation After Oil Spills, Nuclear Accidents, and Financial Crises (Cambridge University Press, forthcoming), on how episodic crisis events reshape regulation and how regulation can learn from crises.  The group presented this research at a 2014 conference held by the IRGC and the Organisation for Economic Co-operation and Development (OECD) in Paris.

In addition, Wiener authored a new article on “The Tragedy of the Uncommons: On the Politics of Apocalypse,” in the journal Global Policy (June 2016).  Here he argues that truly extreme global catastrophic risks suffer tragic psychological and political neglect, both because they are so rare (not experienced) and so devastating — but that policy responses to such catastrophic risks also face potential tragedies of mismanagement.   This article synthesizes several key insights in risk perception, political economy, precaution, policy learning, expert versus public perspectives, risk-risk tradeoffs, and optimal policy design.  Read more about Wiener’s work on risk and catastrophe in Duke Law Magazine.

Jonathan Wiener: Selected Recent Scholarship

  • Policy Shock: Recalibrating Risk and Regulation after Oil Spills, Nuclear Accidents, and Financial Crises  (Edward Balleisen, Lori Bennear, Kim Krawiec, and Jonathan Wiener, editors) (Cambridge University Press, forthcoming 2016).
  • “Environmental Law Goes Retro:  Learning Foresight from Hindsight,” Journal of Land Use & Environmental Law, (forthcoming 2016) (with Daniel Ribeiro).
  • “On Markets, Morals, and Climate Change,” 80 Law and Contemporary Problems, (forthcoming 2016) (with Jonas Monast and Brian Murray).
  • “Free Trade Agreements and Patterns of Risk Regulation in the EU and US,” International Risk Governance Council (IRGC) report to the European Parliament (forthcoming September 2016) (Jonathan Wiener, Arthur Petersen, John Graham, Ken Oye, Ortwin Renn, Christina Benighaus, Marie-Valentine Florin).
  • “Comparing Regulatory Oversight Bodies: US OIRA and the EU IAB/RSB” (with Alberto Alemanno), in Susan Rose-Ackerman & Peter Lindseth, eds., Comparative Administrative Law (2d ed., Edward Elgar, forthcoming 2016).
  • “Impact Assessment: Diffusion and Integration,” in Francesca Bignami & David Zaring, eds., Comparative Law and Regulation:  Understanding the Global Regulatory Process (Edward Elgar, 2016) (with Daniel Ribeiro).
  • The Tragedy of the Uncommons:  On the Politics of Apocalypse,” 6 Global Policy 67-80 (May 2016).
  • “Precaution and Climate Change,” in Cinnamon Carlarne, Kevin R. Gray and Richard Tarasofsky, eds., The Oxford Handbook of International Climate Change Law (Oxford Univ. Press, May 2016).
  • The Value of Information in Decision-Analytic Modeling for Malaria Vector Control in East Africa,” Risk Analysis, (online 23 March 2016) (Dohyeong Kim, Zachary Brown, Richard Anderson, Cliff Mutero, Marie Lynn Miranda, Jonathan Wiener, and Randall Kramer).
  • “New Approaches to International Regulatory Cooperation: The Challenge of TTIP, TPP and Mega-Regional Trade Agreements,” 78 Law & Contemporary Problems 1-29 (2015) (introduction to symposium issue) (with Richard B. Stewart, Reeve T. Bull, and Neysun Mahboubi).
  • “The Future of International Regulatory Cooperation: TTIP as a Learning Process toward a Global Policy Laboratory,” 78 Law & Contemporary Problems 103-136 (2015) (with Alberto Alemanno).
  • “Towards a New International Law of the Atmosphere?” 7 Göttingen Journal of International Law, (November 2015) (with Peter H. Sand).
  • “Towards an Effective System of Monitoring, Reporting and Verification,” chapter 13 in Scott Barrett, Carlo Carraro & Jaime de Melo, eds., Towards a Workable and Effective Climate Regime (CEPR Press and FERDI, 2015), pp.183-200.
  • “Eco-Environmental Risk Management” for China, Special Policy Study report for the China Council for International Cooperation on Environment and Development (CCICED) (2015) (Jun Bi, Shiqiu Zhang, Jinliang Zhang, Fang Yu, George Greene, Ortwin Renn, Jonathan Wiener, Haakon Vennemo, et al.).
  • Using and Improving the Social Cost of Carbon,” 346 Science 1181-82 (5 December 2014) (co-authored by William Pizer, Matthew Adler, Joseph Aldy, David Anthoff, Maureen Cropper, Kenneth Gillingham, Michael Greenstone, Brian Murray, Richard Newell, Richard Richels, Arden Rowell, Stephanie Waldhoff, and Jonathan Wiener).
  • Responding to Agency Avoidance of OIRA,” 37 Harvard J. Law & Public Policy 447-521 (2014) (with Nina Mendelson).
  • “Intellectual Property and Alternatives:  Strategies for Green Innovation,” chapter 12 in Mario Cimoli, Giovanni Dosi, Keith E. Maskus, Ruth L. Okediji, Jerome H. Reichman & Joseph E. Stiglitz, eds., Intellectual Property Rights: Legal and Economic Challenges for Development (Oxford University Press, 2014) (with Jerome Reichman, Arti K. Rai & Richard G. Newell).
  • “International Cooperation:  Agreements and Institutions” (with Robert Stavins, Zou Ji, and others), in Ottmar Edenhofer et al., eds., Intergovernmental Panel on Climate Change (IPCC), 5th Assessment Report (AR5), Working Group III, Climate Change 2014: Mitigation (2014).