Can Non-State Actors Save the Paris Climate Agreement?
Vol. 40 Associate Editor
Since the Paris Climate Agreement was signed in 2015, power shifts among the most prominent state signatories have left spectators questioning the future of the Agreement. In the midst of these political shake-ups, international attention has turned to non-state actors (NSAs)—a term used herein to mean individuals or groups “including civil society, the private sector, financial institutions, cities, and other subnational authorities, local communities and indigenous peoples”—that have expressed dedications to the Agreement. One increasingly prominent and important coalition of NSAs, known as “America’s Pledge,” invites an important question: To what extent does the Agreement hold non-state actors accountable? Comprised of over 3,000 American cities, states, and businesses, the group was organized in the aftermath of President Trump’s withdrawal from the Paris Agreement in 2017 to communicate the message that United States’ leaders are “still in.” The overarching goal of the Agreement is to limit the global temperature increase to 1.5°C through reductions in greenhouse gas (GHG) emissions. As the signatory states prepare for the Agreement’s ratification in 2020, the international community is questioning what impacts America’s Pledge and other similar organizations will have on the world’s ability to meet that ambitious target. The Agreement and International Trends The Paris Agreement itself is not a legally binding document. Former President Obama in particular did not believe the Agreement would be politically viable as a treaty, since it did not have strong support in Congress. Thus, the Agreement was signed on a voluntary basis. NSAs are likewise not legally bound, though drafters of the Agreement foresaw the critical role NSAs must play. Two foundational components of the Agreement encourage NSA participation: (1) the Agreement includes language which calls for signatory parties to encourage “public and private entities authorized by the party . . . in the mitigation of greenhouse gas emissions;” and (2) in a subsequent Decision to the Agreement, “non-party stakeholders” were called upon to “scale up their efforts and support actions to reduce emissions” by reporting to the Non-State Actor Zone for Climate Action (NAZCA). One explanation for the prominent role of NSAs in the Paris Agreement is a trend in international law known as “hybrid multilateralism.” This term describes a coalescing of two typical governance structures: one where states solely negotiate with other recognized states, and another where nontraditional, self-organizing governing bodies work together and sometimes with states. While the Paris Agreement is a multilateral agreement with 195 state signatories, the Agreement embraced non-state actors as important stakeholders who, particularly in the cases of large, multinational corporations, are uniquely positioned to have huge impacts on the necessary GHG reductions. The Agreement does not have a legal enforcement mechanism, but rather relies on soft law, including a system of “naming and shaming,” to ensure compliance. Each state signatory must determine its own goals for GHG emission reduction and report these “Nationally Determined Contributions” (NDCs) to the United Nations Framework Convention on Climate Change (UNFCCC) Secretariat to be published. Once published, the drafters of the Agreement anticipated that any breach of a country’s own NDCs would result in “shaming” from “other countries, financial markets, and most important, by their citizens.” Ideally, over time the signatory states as well as the public and private parties they authorize to participate will institutionalize the norms set forth in the Agreement. To be effective, this naming and shaming regime should apply similarly to NSAs as it applies to states. The UNFCCC created a reporting mechanism for NSAs in the NACZA platform, in which NSAs may register their “climate actions.” But the question of whether and to what extent NSAs may be held accountable remains unanswered. One of the central tenets of the naming and shaming regime—transparency—is not likely to appeal to large corporations that prefer to be selective with information they make public. This is only one example of the disparate manner in which the Agreement may apply to states versus non-state stakeholders. Though the NSAs may be best situated to make institutional changes, they have no duty to report to the UNFCCC. Applying the Agreement to NSA Coalitions According to a report published by America’s Pledge in September 2018, the coalition has the capacity to bring the United States “within striking distance” of the Paris Agreement’s 2025 emission reduction targets, even without formal federal leadership. Specifically, the report found that based on projections from current commitments, economy-wide emissions will be cut by 17 percent below 2005 levels by 2025. America’s Pledge may operate as any other NSA which identifies as a “non-party stakeholder” and may register climate actions with the NAZCA. However, the real impacts of reporting to the NAZCA database are still to be determined. While the dedication is heartening, these actors are not proper signatories, and thus are not held to the same reporting standards as state actors. Ideally, each NSA member will hold itself and other NSAs accountable through economic market pressure, but without outside auditors and stringent reporting requirements, it will be difficult to know whether the NSAs are making good on their commitments or for them to meaningfully engage in naming and shaming. In December, the parties to the Agreement will meet in Poland to finalize the “rule book” for implementing the Paris Agreement. While it remains unclear as to what extent commitments from NSAs will impact a state’s ability to meet its NDCs, by encouraging participation by all interested parties, the UN seems to be moving in the right direction.
 See, e.g., Megan Darby, Brazil Elects Bolsonaro, Who Has Threatened Amazon and Global Climate Efforts, Climate Change News (Oct. 29, 2018) http://www.climatechangenews.com/2018/10/29/brazil-elects-bolsonaro-threatened-amazon-global-climate-efforts/; Michael Shear, Trump Will Withdraw U.S. From Paris Climate Agreement, N.Y. Times (June 1, 2017), https://www.nytimes.com/2017/06/01/climate/trump-paris-climate-agreement.html.  Rep. of the Conference of the Parties on its Twenty-First Session, Adoption of the Paris Agreement, Decision 1/CP.21, at 3, U.N. Doc. FCCC/CP/2015/10/Add.1 (Jan. 29, 2016) [hereinafter “Decision 1”].  About America’s Pledge, https://www.americaspledgeonclimate.com/about/.  Id.  Paris Agreement to the United Nations Framework Convention on Climate Change art. 2.1(a), Dec. 13, 2015, in Rep. of the Conference of the Parties on the Twenty-First Session, U.N. Doc. FCCC/CP/2015/10/Add.1, annex (2016) [hereinafter “Paris Agreement”].  The Paris Agreement: Frequently Asked Questions, UN (Sept. 12, 2016), https://www.un.org/sustainabledevelopment/blog/2016/09/the-paris-agreement-faqs/.  See, e.g., Coral Davenport, Obama Pursuing Climate Accord in Lieu of Treaty, N.Y. Times (Aug. 26, 2014), https://www.nytimes.com/2014/08/27/us/politics/obama-pursuing-climate-accord-in-lieu-of-treaty.html.  The Paris Agreement: Frequently Asked Questions, supra note 6.  Paris Agreement art. 6.4.  Decision 1 ¶¶ 133-36.  See, e.g., John Dryzek, The Meanings of Life for Non-State Actors in Climate Politics, 26 Envtl. Pol. 789, 789 (2017).  Id. at 796.  Karin Bäckstrand et al., Non-State Actors in Global Climate Governance: From Copenhagen to Paris and Beyond, 26 Envtl. Pol. 561, 562 (2017).  Paris Agreement art. 4.12 (Nationally determined contributions communicated by Parties shall be recorded in a public registry maintained by the secretariat.”).  The Paris Agreement: Frequently Asked Questions, supra note 6.  Behnam Taebi & Azar Safari, On Effectiveness and Legitimacy of ‘Shaming’ as a Strategy Combatting Climate Change, 23 Sci. & Eng’g Ethics 1289, 1291 (2017) (“[S]ince reporting on voluntary cuts is often based on self-assessments, there needs to be a verification mechanism in order to ensure compliance with the agreed-upon cuts.”).  Decision 1 ¶ 117.  Taebi & Safari, supra note 16, at 1303.  See Decision 1 ¶ 117 (“Welcomes the efforts of non-Party stakeholders to scale up their climate actions, and encourages the registration of those actions in the Non-State Actor Zone for Climate Action platform;”).  America’s Pledge Initiative on Climate, Fulfilling America’s Pledge: How States, Cities and Businesses are Leading the United States to a Low-Carbon Future (2018), available at https://www.bbhub.io/dotorg/sites/28/2018/09/Fulfilling-Americas-Pledge-2018.pdf.  The United States pledged to cut emissions by 26-28 percent in the Paris Agreement. Id.  Data Driven Yale et al., Global Climate Action From Cities, Regions, & Businesses (2018), available at http://datadriven.yale.edu/wp-content/uploads/2018/08/YALE-NCI-PBL_Global_climate_action.pdf.  See Decision 1 ¶ 117.  Jocelyn Timperley, Bangkok Climate Talks: Key Outcomes on the Paris Agreement ‘Rulebook’, CarbonBrief (Oct. 9, 2018, 4:12pm), https://www.carbonbrief.org/bangkok-climate-talks-key-outcomes-on-the-paris-agreement-rulebook. The views expressed in this post represent the views of the post’s author only.