Reconceptualizing the Future of Environmental Law: The Role of Private Climate Governance

Abstract

The environmental issues, policy plasticity, and regulatory instruments that shaped the early decades of environmental law are no longer dominant. Climate change has the potential to dwarf the issues that sparked the environmental movement, the worldviews and coalitions that enabled enactment of more than a dozen major environmental statutes are long gone, and the standard tools of the trade – government regulation, cap-and-trade systems, and taxes – are often not politically viable. Although the ground has shifted under environmental law, new approaches to environmental governance have emerged that can bypass barriers to government action on climate change and other important environmental problems. Recent executive branch regulations will reduce carbon emissions, as will efforts by state and local governments. The international process also may yield additional reductions. But these public governance measures will fall far short of the reductions necessary to reduce the risk of serious climate disruption. The remarkable growth of private climate governance in the last decade demonstrates how private initiatives that target households, corporations, and other organizations can complement public measures and generate major reductions at low cost and without government action. The actors driving these emissions reductions are private institutions rather than government, and the actions are private initiatives, not statutes, regulations or international agreements. These private initiatives do not rely simply on support for climate mitigation, which is often thin, but also harness efficiency incentives that are unexploited because of widespread market and behavioral failures. Private governance is not a substitute for government action, but it can reduce climate risks, complements government response, and provide a window into the future of environmental law.