Environmental Certification Systems and U.S. Environmental Law: Closer than You May Think

Many industrial organizations are committing to achieve improved environmental performance through non-governmentally instituted environmental certification programs. Such programs typically define the environmental standards that firms must meet as well as the organizational mechanisms required to achieve and certify compliance. Well known examples include the chemical industry\u27s Responsible Care program, the International Organization for Standardization\u27s ISO 14000 environmental management program, and the Forest Stewardship Council\u27s well-managed forests program. Because of their ostensibly private and voluntary nature, environmental certification programs are often presumed to be separate and distinct from law. In fact, however, they are deeply intertwined with law, and seem likely to have a significant influence on it over time. This paper describes the main areas of law likely to be affected, including traditional environmental law, as well as tort, property, tax, information, financial, and trade law. It ventures that many of the change processes will be informal and barely visible, as legal agents adjust their behavior and expectations to take account of the standards and organizational mechanisms established by certification systems. Because of the potentially high degree of legal influence wielded by certification systems, the legal system is likely to try to constrain or seek to channel certification systems, so the paper also describes the primary means through which this may happen. The effects of certification systems on environmental performance and economic efficiency have dominated discussion of their desirability to date. Preliminary scholarship indicates moderate gains on both dimensions, provided certain framework conditions (particularly functional public information systems and watchdog groups) exist. This paper argues that certification systems also pose larger questions for public governance. These include a structural expansion in the power of industrial organizations, a possible redefinition of the nature of public legitimacy, and a potential reconfiguration of the legal system itself, wherein law making processes may once again be privatized

Forest Certification as a Global Civil Society Regulatory Institution

Published in Social and Political Dimensions of Forest Certification, Errol Meidinger, Christopher Elliott & Gerhard Oesten, eds.https://digitalcommons.law.buffalo.edu/book_sections/1187/thumbnail.jp

Private Environmental Regulation, Human Rights, and Community

Private organizations have recently established numerous programs aimed at improving the environmental performance of industry. Many of the new programs seek to define and enforce standards for environmental management, and to make it difficult for producers not to participate in them. They claim, explicitly and implicitly, to promote the public interest. They take on functions generally performed by government regulatory programs, and may change or even displace government programs. Private programs thus have the potential to significantly reshape domestic and international policy institutions. This paper describes three major private environmental regulatory programs applicable to forestry and discusses their implications for environment, human rights, and community: the Forest Stewardship Council\u27s forest and forest product certification programthe International Organization for Standardization\u27s ISO 14000 programthe American Forest and Paper Association\u27s Sustainable Forestry Initiative The paper concludes, among other things, that each of the programs has some potential for improving the environmental performance of forest enterprises, but that only the FSC program offers much hope of strengthening the protection of human rights and the participation of communities in forestry. Indeed the ISO and AF&PA programs seem designed to narrow the human rights concerns that firms must take into account, and to dampen the participation of communities by helping firms to manage community concerns more effectively. If one program were to prevail it would likely be the ISO program, based on its superior organizational and financial resources. However, rather than being entirely separate, these and other programs compete with and complement each other in a larger regulatory arena. It is possible that one or more hybrids combining elements several programs will emerge over time. The paper also discusses problems posed by the growing role of private regulatory programs for equity, law, and democracy

Beyond Westphalia: Competitive Legalization in Emerging Transnational Regulatory Systems

Published as Chapter 7 in Law and Legalization in Transnational Relations, Christian Brütsch & Dirk Lehmkuhl, eds. This paper analyzes several emerging transnational regulatory systems that engage, but are not centered on state legal systems. Driven primarily by civil society organizations, the new regulatory systems use conventional technical standard setting and certification techniques to establish market-leveraged, social and environmental regulatory programs. These programs resemble state regulatory programs in many important respects, and are increasingly legalized. Individual sectors generally have multiple regulatory programs that compete with, but also mimic and reinforce each other. While forestry is the most developed example, similar patterns are evident in agriculture, fisheries, apparel, and mining, among other sectors. The paper describes the institutional structures and routines of the new regulatory systems, their interactions with state based systems, and some possible broader implications for law and society. Among other things, it notes that the emerging regulatory systems permeate their sectors with increasingly broad and deep rule systems and seek to remain highly dynamic at the same time. The paper closes with a brief discussion of whether the systems might be sketching the outlines of new forms of transnational democracy.https://digitalcommons.law.buffalo.edu/book_sections/1196/thumbnail.jp

Private Import Safety Regulation and Transnational New Governance

Published as Chapter 12 in Import Safety: Regulatory Governance in the Global Economy, Cary Coglianese, Adam M. Finkel & David Zaring, eds. This paper examines the role of ‘private’ (non-governmental) regulatory programs in assuring the safety of imported products. Focusing particularly on food safety it argues that private regulatory institutions have great capacity to control safety hazards and to implement dynamic systems for detecting and correcting nascent risks. However, to establish the accountability and legitimacy relationships necessary for long-term effectiveness, private safety regulatory programs must devise new ways of incorporating and responding to the interests of developing country producers, laborers, consumers, and governments. Developed country regulators can aid this process by ‘orchestrating’ transnational governance processes to ensure that private regulatory programs collect and share information, maximize transparency and participation in their standard setting procedures, and experience incentives to deploy maximal care in implementation, monitoring, and enforcement.https://digitalcommons.law.buffalo.edu/book_sections/1190/thumbnail.jp

Reconstituting \u3cem\u3eHaudenosaunee\u3c/em\u3e Law, Sovereignty, and Governance

This article introduces a symposium issue on Law, Sovereignty, and Tribal Governance: The Iroquois Confederacy that grew out of a conference at the University at Buffalo Law School in 1998. The symposium was heavily attended and debated by the indigenous peoples of the region. The article argues that core lessons of the conference included the requirement to understand and implement sovereignty as tool of cultural survival, particularly in its insistence on a land base; that sovereignty has been adopted as a central concept by Indian peoples both because it provides a necessary social bulwark and because it facilitates a discursive connection with non-native peoples; that tribal sovereignty requires a continual defense and reinvention of governance institutions; and that tribal sovereignty includes not just relative political autonomy, but also political good sense — sound thinking in the classical indigenous understanding

The New Environmental Law: Forest Certification

This paper argues that the rapidly expanding practice of forest certification, together with similar developments in other sectors, is creating a new template for environmental law. Nongovernmental organizations and some industry actors are establishing binding regulatory standards, systems for monitoring compliance, sanctions for non-compliance, and, when things work well, methods for assessment and revision. It locates these developments as a part of “phase 3” of environmental law, which also involves a proliferation of other initiatives beyond traditional regulation. Finally, it offers a preliminary discussion of the efficacy, adaptability, coherence, and legitimacy of the emergent system

Competitive Supragovernmental Regulation: How Could It Be Democratic?

This paper explores the possibility that a developing form of regulatory governance is also sketching out a new form of anticipatory regulatory democracy. \u27Competitive supra-governmental regulation\u27 is largely driven by non-state actors and is therefore commonly viewed as suffering a democracy deficit. However, because it stresses broad participation, intensive deliberative procedures, responsiveness to state law and widely accepted norms, and competition among regulatory programs to achieve effective implementation and widespread public acceptance, this form of regulation appears to stand up relatively well under generally understood criteria for democratic governance. Nonetheless, a more satisfactory evaluation will require a much better understanding of which programs win regulatory competitions, and why