Keynote: Motivating Private Climate Governance: The Role of the Efficiency Gap

The topic of this symposium, “Environmental Sustainability and Private Governance,” is important and timely. In response to the shrinking federal role in environmental protection, many policy advocates have focused on the role of states and cities, but this symposium focuses on another important source of sustainability initiatives: the private sector, including corporations, households, civic and cultural organizations, religious organizations, private hospitals, colleges and universities, and other organizations. States, cities, and other subnational government responses are increasingly important, but the limited geographic reach of subnational governments constrains their ability to address many environmental problems. For instance, although twenty states have set quantified greenhouse gas (GHG) emissions targets and are adopting policies to reduce emissions, almost two-thirds of United States GHG emissions arise from the thirty states that do not have GHG targets. Private governance initiatives offer an opportunity to fill the gap

Private Governance Responses to Climate Change: The Case of Global Civil Aviation

This Article explores how private governance can reduce the climate effects of global civil aviation. The civil aviation sector is a major contributor to climate change, accounting for emissions comparable to a top ten emitting country. National and international governmental bodies have taken important steps to address civil aviation, but the measures adopted to date are widely acknowledged to be inadequate. Civil aviation poses particularly difficult challenges for government climate mitigation efforts. Many civil aviation firms operate globally, emissions often occur outside of national boundaries, nations differ on their respective responsibilities, and demand is growing rapidly. Although promising new technologies are emerging, they will take time to develop and adopt. This Article argues that private initiatives can overcome many of these barriers. Private initiatives can motivate civil aviation firms to act absent government pressure at the national level and can create pressure for mitigation that transcends national boundaries. The Article argues that it is time to develop a private climate governance agenda for civil aviation and identifies examples of the types of existing and new initiatives that could be included in the effort. If public and private policymakers can overcome the tendency to focus almost exclusively on public governance, private initiatives can yield large and prompt emissions reductions from global civil aviation, buy time for more comprehensive government measures, and complement the government measures when they occur

Private Environmental Governance

Environmental law has quietly transformed from a positive law field deeply rooted in administrative law to one that is also heavily rooted in private law and private governance. After two decades (1970-1990) of remarkable activity, more than two decades have now passed without a major federal environmental statute (1991-2012). Whether the appropriate next step is expansion or contraction, reforms to the federal statutory framework have stalled. Federal regulatory activity and state and local measures have filled some of the gap, but private governance efforts – the pursuit of public ends through private standards, monitoring, enforcement, and dispute resolution – now play an important role. Corporations report that their toxics use is regulated more by private supply chain contract requirements than the federal toxics statute. The fate of 14% of the temperate forests and 7% of the fisheries around the world is in the hands of private certification systems. More money is spent on private environmental inspections than on the entire federal environmental enforcement office. The emergence of private governance is hiding in plain view because the conceptual model by which environmental law is viewed and the metrics by which legal activity is measured do not square easily with private governance. Environmental preferences are expressed in private market decisions, not through voting or lobbying. Standard-setting, enforcement, and dispute resolution occur through private actions and institutions, not legislatures, agencies and courts. This Article demonstrates the value of conceptualizing seemingly disparate private activities as a discrete new model of environmental governance. Viewing private environmental governance in this way provides new insights about collective action problems, re-frames the standards used for environmental instrument choice, and suggests new actors and actions to address environmental problems

Disclosure of Private Climate Transition Risks

This Article identifies a gap in the securities disclosure regime for climate change and demonstrates how filling the gap can improve fi nancial disclosures and accelerate climate change mitigation. Private climate initiatives have proliferated in the last decade. Often led by advocacy groups, these private initiatives have used naming and shaming campaigns and other means to induce investors, lenders, insurers, retail customers, supply chain customers, and employees to pressure firms to engage in climate change mitigation. Based on an empirical assessment of the annual reports filed with the Securities and Exchange Commission (SEC) by Fortune 100 firms and the largest firms in several fossil fuel-heavy sectors, this Article concludes that roughly a third of these firms disclose the risks and opportunities posed by private environmental governance (PEG) initiatives. The assessment also finds, however, that disclosures vary substantially among similar firms and among similar sectors. The Article argues that this heterogeneity in disclosure is not surprising given that the SEC\u27s 2010 climate guidance and other disclosure regimes do not call sufficient attention to PEG climate initiatives, and many lawyers think of environmental risks as synonymous with governmental regulatory risks. The legal literature on climate transition risk focuses principally on whether regulatory and market- based risks should be disclosed, but it overlooks the importance of the material risks posed by PEG climate initiatives. PEG climate ini- tiatives pose a discrete form of climate transition risk for many firms, and revisions to the SEC guidance and other disclosure regimes to account for PEG climate initiatives can be adopted more quickly, produce more complete financial disclosures, and yield greater and more durable emissions reductions than many other approaches

Climate Change: The China Problem

The central problem confronting climate change scholars and policymakers is how to create incentives for China and the United States to make prompt, large emissions reductions. China recently surpassed the United States as the largest greenhouse gas emitter, and its projected future emissions far outstrip those of any other nation. Although the United States has been the largest emitter for years, China\u27s emissions have enabled critics in the United States to argue that domestic reductions will be ineffective and will transfer jobs to China. These two aspects of the China Problem, Chinese emissions and their influence on the political process in the United States, result in a mutually supportive but ultimately destructive dance between the two countries. This article argues that a post-Kyoto international agreement and other measures are necessary but will not create sufficient incentives to induce China, and ultimately the United States, to act. Instead, the article draws on the fact that the United States and Europe account for 41% of Chinese exports to propose a novel means of changing both countries\u27 incentives. The article suggests that private or public schemes in the United States and Europe to disclose product carbon emissions and corporate carbon footprints can create consumer and other pressure that will induce firms to impose supply chain requirements on Chinese and other suppliers. This form of global private governance can create market-based incentives for China and the United States to reduce emissions directly and to make credible emissions reduction commitments in the post-Kyoto era

An Alternative to Ready, Fire, Aim: A New Framework to Link Environmental Targets in Environmental Law

This Article begins with a brief overview of the state of the environment and the lessons learned from the early development of the command and control system. It then explores recent reform proposals and the scholarship on the democratic impact of means-based approaches. The Article next examines the new model that is emerging in the Netherlands and other countries, and identifies the critical feature of the new model: the development of context for environmental decisionmaking at each of the three levels discussed above. The Article concludes by analyzing the implications of this Framework Approach for the environmental debate and for environmental law reform in the United States. Although the Framework Approach would be difficult to implement in the United States, its core principles may reveal many of the underlying problems both with the environmental reform debate and with environmental law reform in the United States. Ironically, although the ends-based concepts adopted abroad stem from a European tradition of governmental involvement in social planning that is not favored in the United States, the identification of ends in the Framework Approach may be a prerequisite for reducing the intrusiveness and costs of the command and control system while improving environmental protection. The Framework Approach discussed in this paper is unquestionably utopian. As one author noted in a recent article, however, environmental law reform has suffered from an absence of scholarship that explores \u27relevant utopias. I invite the reader to suspend disbelief on the practical feasibility of the Framework Approach long enough to assess whether its underlying concepts reveal a new perspective on the environmental law reform debate and a new set of questions to be answered about environmental law refor

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

The title of this Symposium, Reconceptualizing the Future of Environmental Law, accurately captures the challenge facing environmental law scholars and policymakers in 2015. The success of environmental law in the future will not arise from doubling down on the approaches developed over the last 50 years. Instead, it will arise from our willingness to learn from the past without being bound by the conceptual frameworks that dominated the early development of the field. In particular, a successful future for environmental law is more likely to emerge if we acknowledge that the environmental problems, policy plasticity, and regulatory institutions that shaped the early decades of the field are no longer dominant, and if we develop new responses that reflect the shifts that have occurred on each of these points. I begin by identifying several important shifts in environmental problems, policy plasticity, and institutions. I then explore how new conceptual frameworks--sometimes explicit and sometimes not-- are already leading to new responses to some of the most challenging environmental issues. No environmental issue is more challenging than climate change, and physicist Jonathan Gilligan and I have argued for a conceptual shift that involves recognizing the opportunity to buy time with private governance. We have not argued that private governance is a complete response or that it is the only new approach to climate change, but we have asserted that private initiatives can achieve a private governance wedge--emissions reductions that grow each year and average a billion tons per year over the 2016-2025 period. By drawing on existing efficiency incentives and motivations to reduce corporate and household carbon emissions, private initiatives can buy time while national and international governmental processes are in gridlock. In addition, many of these initiatives can complement a carbon price after it is adopted. The challenge is to make the conceptual shift: to move beyond the early history of environmental law and recognize that environmental governance is not synonymous with public governance

Beyond Elegance: A Testable Typology of Social Norms in Corporate Environmental Compliance

Social norms scholarship faces the challenge of becoming a mature discipline. Norms theorists have proposed several elegant, widely applicable theories of the origin, evolution and function of norms. For the most part, these theories have suggested that social norms can be viewed as a refinement to the behavioral assumptions of rational choice theory. Although this approach at least implicitly suggests that accounting for norms will improve the predictive capacity of rational choice models, the work must overcome substantial hurdles if it is to do so. The wide range of norms and mechanisms of norm influence on behavior complicate the \u27formal modeling process, and the divergent terms and theoretical constructs used by the academic disciplines that seek to understand norms present additional challenges. For norms scholarship to flourish, norms theories must be applied to real-world problems in ways that do notjust complicate the analysis but advance our ability to predict the effects of laws on behavior and, ultimately, to assist policymakers. This article takes the next step in the evolution of norms scholarship. The article does not purport to offer an elegant or universal theory of norms, but rather to improve the predictive capacity of rational choice theory in a specific setting: the environmental compliance decision-making of corporate managers. In particular, the article draws on existing empirical literature to propose a conceptual framework that accounts for the influence of norms on environmental decision-making. The proposed framework not only serves as a research agenda for scholars applying norms theory to corporate environmental compliance, but it also has implications for research on compliance with a number of other regulatory regimes, including tax, worker health and safety, securities and health care

The Rutabaga That Ate Pittsburgh: Federal Regulation of Free Release Biotechnology

When the Environmental Protection Agency (EPA) first approved a field test of a bioengineered microbe,\u27 one EPA official remarked: We\u27re not expecting this to be the rutabaga that eats Pittsburgh.\u27 2 But regulators cannot afford to be wrong. Bioengineered microbes may serve many useful purposes, but they may also cause harm to the environment and to human health.3 Although the risks of an accident stemming from the deliberate release of bioengineered microbes into the environment may be low, the resulting damage could be substantial. This note examines the possible consequences of two recent trends in biotechnology-the development of bioengineered microbes for environmental release and the emergence of a vigorous biotechnology industry- on federal environmental regulation. These two developments have produced regulatory confusion in an area that can ill afford uncertainty. Biotechnology companies eager to recapture their research investments through the commercialization of bioengineered products are pressing understaffed regulatory agencies to permit the release of microorganisms produced by bioengineering techniques into the environment.4 This regulatory confusion is well illustrated by the conflicting treatment the courts have given two virtually identical proposals for deliberate release experiments

Keynote: Motivating Private Climate Governance: The Role of the Efficiency Gap

In response to the shrinking federal role in environmental protection, many policy advocates have focused on the role of states and cities, but this symposium focuses on another important source of sustainability initiatives: the private sector, including corporations, households, civic and cultural organizations, religious organizations, private hospitals, colleges and universities, and other organizations. States, cities, and local governments are increasingly important, but the limited geographic reach of subnational governments and widespread concerns about the size and intrusiveness of the public sector constrain their ability to address many environmental problems. Private governance initiatives offer an opportunity to bypass concerns about big government and fill the gap. Although private initiatives cannot draw on the coercive power and resources of government, if these initiatives can accelerate efficiency gains in the private sector, they can motivate mitigation efforts even absent government action. This brief keynote address explores the literature on the size of the efficacy gap and the implications for private climate mitigation initiatives