TPP and Environmental Regulation

Published as Chapter 8 in Megaregulation Contested: Global Economic Ordering After TPP, Benedict Kingsbury, David M. Malone, Paul Mertenskötter, Richard B. Stewart, Thomas Streinz & Atsushi Sunami, eds. This article examines the environment-related provisions of the Trans-Pacific Partnership Agreement (TPP) to assess how and how much they contribute to a larger megaregulatory program for the Asia-Pacific region. The TPP calls for ‘high levels’ of environmental protection and effective enforcement; incorporates duties from several multilateral environmental agreements; adds new provisions addressing several important environmental problems; mandates administrative best practices; promotes corporate social responsibility and the use of voluntary certification systems; and provides implementation mechanisms for most of these provisions ranging from Party negotiations to committee processes and binding arbitration. On the whole, it promotes a model of environmental regulation consistent with that of most OECD countries. The resulting movement toward cross-border regulatory alignment is likely to make member state environmental programs increasingly legible and navigable for transnational business actors. Alignment dynamics are likely to contribute to increased economic and political integration through implementation of common administrative techniques, increasing communication and idea-sharing among mandated committees and resulting networks of officials, and increased trade and regulatory interactions across member states. The TPP’s environmental regulatory program is quite different from China’s current model, and seems likely to provide an important arena for engaging and countering Chinese policies. While the TPP’s environmental provisions are likely to spur improved environmental regulation in some member countries, they do not point toward a governance system capable of controlling the environmental degradation brought by continuingly intensifying production and trade.https://digitalcommons.law.buffalo.edu/book_sections/1375/thumbnail.jp

Competitive Supragovernmental Regulation: How Could It Be Democratic?

The purpose of this Article is to work through an initial assessment of the democratic potential of competitive supragovernmental regulatory systems. Section II lays out the main institutional elements of competitive supragovernmental regulation and gives some examples of its operation. Key features include implementation through market chains, increasingly participatory and transparent deliberative procedures, and competition among programs. Section III then focuses on the democratic dimensions of competitive supragovernmental regulatory systems. In partial contrast to other work important in the field, it takes a systemic view, examining the composite democratic potential of regulatory systems composed of multiple programs, rather than focusing on individual programs. It argues that competing programs significantly shape each other\u27s policies, creating an overall tendency toward increased democratization. For example, leading programs that practice increasingly sophisticated forms of deliberative and representative democracy are slowly pushing lagging programs in the same directions, thus creating system- wide democratic tendencies. Section III also argues that competition among programs places them under steady incentives to develop standards and implementation mechanisms that will both operate effectively and achieve widespread acceptance, thereby instituting a form of democratic experimentalism. Section IV concludes by first summarizing the democratic case for competitive supragovernmental regulation and then discussing some of its primary weaknesses. One of its key conclusions is that we presently do not know enough about the dynamics of competition among programs to be confident that they indeed result in regulatory standards that reflect and anticipate broader public values. Therefore we need to learn much more about what factors determine the outcomes of supragovernmental regulatory competitions. It may then be possible to revise the rules governing that competition to more fully realize its democratic potential

On Preparing the Soil for Rain

This Essay examines several possibilities for improving our thinking about the vexing, multifaceted problem of revitalizing languishing regions of the United States. Its jumping-off point is an important work of socio-economiclegal history: While Waiting for Rain: Community, Economy, and Law in a Time of Change, by John Henry Schlegel. The book seeks to understand the steady decline of US regional economies, particularly Buffalo, following a period of relatively high prosperity from World War II through the 1950s; its tandem question is how those economies might be revived. Based on a very full and rich exposition, Schlegel argues that, like farmers who are unable to command rain, human collectivities are unable to take specific actions that will bring about economic development. At best, they can try to minimize three ‘transactions of decline’ defined by Jane Jacobs and be prepared to take advantage of rain, should it come. I argue that Schlegel under-develops the implications of several of his own insights, particularly regarding the roles of economic dependency, political fragmentation, and local culture in inhibiting development. I then discuss possible ways of using those insights to ‘prepare the soil for rain’ and raise the possibility of folding the idea of economic development into that of resilience. I conclude by discussing how and whether these suggestions could be further developed in social practice

Governance Interactions in Sustainable Supply Chain Management

Published as Chapter 3 in Transnational Business Governance Interactions: Enhancing Regulatory Capacity, Ratcheting up Standards, and Empowering Marginalized Actors, Stepan Wood, Rebecca Schmidt, Errol Meidinger,Burkard Eberlein, and Kenneth W. Abbot, eds. Supply chains are a major site of transnational business governance, and yet their dynamics and effectiveness are usually more assumed than interrogated in regulatory governance discourse. The very term ‘chain’ implies a more determinist and simplistic understanding of supply relationships than is empirically supportable. Supply chains in practice are complex, dynamic, and highly variable networks. Based on peer-group presentations by more than sixty supply chain professionals, this chapter analyzes sustainable supply chain management practices in terms of the Transnational Business Governance Interactions framework. It discusses possible refinements of the framework and suggests that sustainable supply chain management (1) is likely to make modest contributions to improving governance capacity, (2) may or may not ratchet up standards, and (3) may help protect marginalized parties, but is focused on better using the existing power of lead firms in supply chains.https://digitalcommons.law.buffalo.edu/book_sections/1378/thumbnail.jp

Governance Interactions in Sustainable Supply Chain Management

“Supply chains” are a major site of transnational business governance, and yet their dynamics and effectiveness are usually more assumed than interrogated in regulatory governance discourse. The very term “chain” implies a more determinist and simplistic understanding of supply relationships than is empirically supportable. Supply chains in practice are complex, dynamic, and highly variable networks. Based on peer-group presentations by over 60 supply chain professionals, this paper analyzes sustainable supply chain management practices in terms of the interactions conceptions of the Transnational Business Governance Interactions framework. It discusses possible refinements of the framework and suggests that sustainable supply chain management (1) is likely to make modest contributions to improving governance capacity, (2) may or may not ratchet up standards, and (3) may help protect marginalized parties, but is focused on better using the existing power of lead firms in supply chains

Governance Interactions in Sustainable Supply Chain Management

Published as Chapter 3 in Transnational Business Governance Interactions: Enhancing Regulatory Capacity, Ratcheting up Standards, and Empowering Marginalized Actors, Stepan Wood, Rebecca Schmidt, Errol Meidinger,Burkard Eberlein, and Kenneth W. Abbot, eds. Supply chains are a major site of transnational business governance, and yet their dynamics and effectiveness are usually more assumed than interrogated in regulatory governance discourse. The very term ‘chain’ implies a more determinist and simplistic understanding of supply relationships than is empirically supportable. Supply chains in practice are complex, dynamic, and highly variable networks. Based on peer-group presentations by more than sixty supply chain professionals, this chapter analyzes sustainable supply chain management practices in terms of the Transnational Business Governance Interactions framework. It discusses possible refinements of the framework and suggests that sustainable supply chain management (1) is likely to make modest contributions to improving governance capacity, (2) may or may not ratchet up standards, and (3) may help protect marginalized parties, but is focused on better using the existing power of lead firms in supply chains.https://digitalcommons.law.buffalo.edu/book_sections/1378/thumbnail.jp

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