HE BOTTOM-UP ALTERNATIVE: THE MITIGATION POTENTIAL OF PRIVATE CLIMATE GOVERNANCE AFTER THE PARIS AGREEMENT

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, States Parties' commitments 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 U.S., 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 without regulatory backing. 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 U.S. and elsewhere.