Board Rooms and Jail Cells- Assessing NGO Approaches to Private Environmental Governance

Abstract

Staff of the Nature Conservancy often find themselves in corporate board rooms. Staff of Greenpeace often find themselves in jail cells. The Nature Conservancy (TNC) prides itself on its non-confrontational, collaborative deal making, partnering closely with corporations like chemical giant Dow and agricultural lightning rod Monsanto. Both Dow and Monsanto, in fact, are members of TNC’s Business Council along with the likes of BP, Shell, and Cargill. Greenpeace, on the other hand, prides itself on direct action, civil disobedience, and non-violent confrontation. Greenpeace has launched combative operations against Dow, Monsanto, and other TNC collaborators. While business partners praise TNC’s cooperative efforts, they resist Greenpeace’s strategies, which have been the subject of recent litigation accusing Greenpeace of, among other things, racketeering, conspiracy, and defamation. Given the stark differences in personality and reputation, when it comes to environmental protection instrument choice it is startling to realize that Greenpeace and TNC are nearly indistinguishable. Both TNC and Greenpeace are, fundamentally, proponents of Private Environmental Governance. Private Environmental Governance is the striving for public goals through private endeavor. Through private land conservation and corporate collaborations, TNC is squarely engaged in private environmental governance. Though less obviously so, through public pressure on private companies, reputational campaigns, and consumer persuasion, Greenpeace too seeks to change the market and the behavior of private companies to achieve environmental goals without government involvement. The literature on Private Environmental Governance has been explicit that non-governmental organizations (NGOs) like TNC and Greenpeace have an important role to play, but there is little depth to this assertion. This article will add depth, by examining the efforts of NGOs in environmental instrument selection and implementation. This article offers a novel typology of environmental NGOs based on four categories: (1) Overarching Goal; (2) Governance Philosophy; (3) Advocacy Targets; and (4) Key Tactics. The article then overlays these categories on a diverse range of environmental groups. Critics often toss environmental NGOs into the single basket of Big Green. But this closer examination shows some important distinctions, including significant differences in the way these groups approach Private Environmental Governance. Across the legal literature there is a dearth of research on how advocacy organizations select and influence environmental protection instruments in the public and private spheres. Private Environmental Governance, with its principle focus on private actors rather than government entities, has recognized the importance of this inquiry, and this article opens the doors for a more searching and robust consideration of the role of NGOs in influencing public and private environmental policy.