The Bottom-Up Alternative: The Mitigation Potential of Private Climate Governance after the Paris Agreement

72 Pages Posted: 9 Mar 2018 Last revised: 25 Jul 2018

See all articles by Maria L. Banda

Maria L. Banda

University of Toronto - Faculty of Law

Date Written: January 16, 2018

Abstract

The 2015 Paris Agreement on Climate Change has sought to inject renewed energy into the international climate regime. As a "bottom-up" treaty, however, it allows States to set their own emissions targets. Even before the U.S. withdrawal, State Parties' commitments together fell far short of what is required to achieve the treaty's objectives. The low level of State ambition, coupled with the lack of an international enforcement mechanism, means that private initiatives -- including through courts, investor actions, and voluntary business commitments -- will be critical, especially in the United States, if the climate regime is to deliver on its goals.

This Article seeks to contribute to both the theoretical and empirical literature on private climate governance and develop a richer understanding of bottom-up options for the implementation of the Paris Agreement where State leadership is weak or lacking. First, it develops an analytical framework to evaluate the effectiveness, or the mitigation potential, of private climate governance. Second, it provides a critical assessment of three promising forms of private climate governance: (a) disclosure of company emissions and climate risks; (b) voluntary commitments to reduce emissions; and (c) carbon labeling. The Article shows empirically that these private initiatives face a number of constraints that make them unlikely to generate significant mitigation action in the near term on their own. However, other bottom-up options, such as climate litigation, can play an important role in closing the ambition deficit by increasing government accountability and facilitating the de facto implementation of the Paris Agreement in the United States and elsewhere.

Keywords: International Law, Environmental Law, Treaty Implementation, Paris Agreement, Mitigation Potential, Private Climate Governance, Governance, Collective Action, Climate Law & Policy, Climate Litigation

Suggested Citation

Banda, Maria L., The Bottom-Up Alternative: The Mitigation Potential of Private Climate Governance after the Paris Agreement (January 16, 2018). Harvard Environmental Law Review, Vol. 42, 2018, Available at SSRN: https://ssrn.com/abstract=3134197

Maria L. Banda (Contact Author)

University of Toronto - Faculty of Law ( email )

78 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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