Between Soft Law and Greenwash: The Compliance Dynamic of Civil Forms of Environmental Regulation

Abstract

Over the last years, the environmental regulation system has undergone radical changes. Various private normative schemes, including voluntary corporate codes, environmental management systems, 'green label' schemes, environmental reporting standards, green financial schemes and green indexes, have taken an increasingly important role in the environmental regulatory field. One of the key questions raised by this phenomenon is the issue of efficacy. To what extent, these multiple instruments of private ordering have a meaningful social effect? This question has to be considered in the context of the recurring accusation that these ‘soft’ instruments are nothing but a ‘greenwash’ ploy: a facade of environmental regulation, whose only objective is to enable corporations to continue without disruption with their ecologically destructive practices. The ‘greenwash’/private regulation conundrum reflects a broader dilemma concerning the circumstances under which firms will take environmental actions that go beyond what is prescribed by law. The paper begins by outlining the evolving terrain of private environmental ordering. It argues that these new forms of private governance have taken a globalized ‘face’ – a process that has begun in the mid 1990s. The first section of the paper discusses the unique features of this emerging field of transnational private governance, highlighting, in particular, the multiple links and cross-sensitivities between the distinct schemes, which create a novel ensemble regulatory structure. The second section discusses the efficacy puzzle, contrasting between different theoretical accounts of compliance. It argues that the commonly used concepts of 'soft law' and “green-wash” do not capture the complex social dynamic underlying these new forms of governance and that it is wrong to dismiss these instruments as ‘cheap talk’. The paper concludes with a brief exploration of the future of private regulation at the global sphere.